THE RHETORIC OF GUN CONTROL - American University

THE RHETORIC OF GUN CONTROL

ANDREW JAY MCCLURG*

TABLE OF CONTENTS

Introduction ................................................ 54I. Reason: The Missing Link in Gun Control Rhetoric .... 60

II. The Fallacies of Gun Control Rhetoric ................. 63A. Fallacies of Emotion ............................... 65

1. Appeals to fear and sympathy .................. 652. Appeals to pride and popular opinion .......... 703. Appeals to improper sources of authority ....... 714. Ad hominem ..................................... 74

B. Fallacies of Diversion .............................. 801. Hyperbole ..................................... 812. The slippery slope ............................. 843. The straw man and the red herring ............ 894. Faulty analogies ................................ 91

C. Fallacies of Proof .................................. 961. One-sided assessment .......................... 962. Causal fallacies ................................ 1033. Arguments from ignorance ..................... 106

Conclusion ................................................. 108

* Professor of Law, University of Arkansas at Little Rock; B.S., J.D., University of Flor-ida. I would like to thank my friend and colleague, Professor Mary Pat Treuthart, GonzagaUniversity School of Law, for the many hours she devoted to reading and commenting ondrafts of this article. I benefited greatly from her insightful substantive and editorialcomments.

54 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 42:53

Despite all the rhetoric from the gun lobby, the fact is that the vastmajority of law enforcement officials and most of the Americanpublic supports [the Brady] bill.'

-Representative Thomas DowneyDespite all the heated rhetoric about handguns, the Brady bill isnot a solution to our crime problem. 2

-Representative Jerry Costello

INTRODUCTION

This Article is about rhetoric. In a democratic, pluralistic society,action on any issue of social importance depends on acceptance ofthe action by many different audiences. Acceptance depends on theaudiences being persuaded as to the rightness of the action. Persua-sion depends on effective rhetoric.

When Congress debated the Brady bill,3 a bill that imposes a wait-

1. 137 CoNG. REC. H2845 (daily ed. May 8, 1991) (statement of Rep. Downey).2. Id. at H2845 (statement of Rep. Costello).3. The "Brady bill" is the popular title given to proposed federal legislation to require

waiting periods and background checks for handgun purchases. Sean Murphy, Mayor RenewsCall For Fewer Handguns, BOSTON GLOBE, Dec. 1, 199 1, at 46. Congress debated the bill duringits first session in 1991. See 137 CoNG. REC. H2854 (daily ed. May 8, 1991) (introducingBrady bill); 137 CONG. REC. S59,039 (daily ed.June 28, 1991) (debating Brady bill in Senate).The Brady bill is intended to enforce existing prohibitions on handgun purchases by con-victed felons, fugitives from justice, drug users, mental defectives or persons who have beencommitted to mental institutions, illegal aliens, persons who have been dishonorably dis-charged from the armed forces, and persons who have renounced their United States citizen-ship. See 18 U.S.C. § 922(d), (g) (1988) (identifying persons not eligible for handgunpurchases). The bill was named in honor ofJim and Sarah Brady. Stephanie Saul, Brady Vowsto Keep Pushing Gun Bill, NEWSDAY, Nov. 28, 1991, at 17. Jim Brady is the former press secre-tary to President Ronald Reagan who was wounded by John Hinckley during Hinckley's at-tempt to assassinate the President. Howell Raines, Reagan Wounded in Chest by Gunman, N.Y.TIMES, Mar. 31, 1981, at Al. His wife, Sarah Brady, is the chairwoman of Handgun Control,Inc., a Washington-based lobbying organization that promotes gun control legislation. Id.

In the summer of 1991, the United States House of Representatives and the United StatesSenate introduced different versions of the Brady bill as part of broader crime control pack-ages. H.R. 7, 102d Cong., 1st Sess. (1991); S. 1241, 102d Cong., 1st Sess. §9 2701-2703(1991). Both bills required licensed firearm dealers to forward identifying informationregarding a prospective handgun purchaser to the chief law enforcement officer at thepurchaser's place of residence. The dealer would then have to wait for a period of days toreceive information from the officer as to whether the purchase would violate federal, state, orlocal law. The House bill provided for a seven-day waiting period, while the Senate bill speci-fied a waiting period of five business days. H.R. 7 § 2(a)(s)(1)(A)(ii)(I); S. 1241§ 2701(a)(u)(A)(ii)(I). A more important difference between the two bills is that only the Sen-ate bill actually required the chief law enforcement officer receiving the information to con-duct a background check of the prospective purchaser. S. 1241 § 2701(a)(u)(2). The Housebill required only that the seller communicate the information to the police and then waitseven days. H.R. 7 § 2(a)(s)(1)(A)(III). Though the drafters of the House bill apparentlycontemplated that the police would conduct a background check upon receiving the informa-tion, the bill did not impose such an obligation. In fact, the House bill expressly stated that it"shall not be interpreted to require any action by a chief law enforcement officer which is nototherwise required." Id. § 2(a)(s)(2).

The Senate bill also went further than the House bill in mandating that the Attorney Gen-eral create a computerized "national instant criminal background check system." S. 124 1,


ing period and background check for handgun purchases, rhetoricflowed freely on both sides. As reflected in the introductory quotes,each side chastised the other for using rhetoric. There is nothingimproper or indecorous, however, about using rhetoric in a debate.Although often characterized pejoratively, "rhetoric" is not a pejo-rative term. It is simply a label for the discourse of practical argu-mentation. 4 To accuse an opponent in an argument of engaging in

supra, § 2702. To ensure this would be accomplished, the bill imposed specific timetables onthe federal and state governments for the development of such a system. Id. The bill gave theAttorney General 30 months to certify that a national computer system had achieved at least80% currency of case dispositions for all cases in which there had been activity within the fivepreceding years. Id. § 2702(d)(1)(A). At that time, the Attorney General would also have todetermine whether the states were in compliance with a five-year timetable to develop systemsof similar capabilities. Id. § 2702(c)(2),(d)(l)(B). A state that was certified to be on schedulewith the timetable would be released from the federal waiting period and background checkrequirements. Id § 2702(d)(2). Six years after the law became effective, the Attorney Generalwould be required to certify whether the states were fully in compliance with the act. I&§ 2702(d)(3). If they were determined to be in compliance, the waiting period and back-ground check requirements would be lifted. Id.

Both the House and Senate bills created some exceptions to the waiting periods and back-ground checks, including situations where a threat had been made against the life of the pur-chaser or a member of the purchaser's family. H.R. 7 § 2(a)(s)(1)(B); S. 1241§ 2701(a)(u)(1)(B). Both bills also exempted from coverage purchasers possessing permitsissued by states that require background investigations as a condition for obtaining the per-mits. H.R. 7 § 2(a)(s)(1)(C); S. 1241 § 2701(a)(u)(1)(C).

In November 1991, House and Senate conferees reached agreement on an overall crimebill, which was designated the Omnibus Crime Control Act of 1991, of which the Brady billwas a small portion (Title V, Subtitle A). H.R. 3371, 102d Cong., 1st Sess. (1991); see alsoCONFERENCE REPORT ON H.R. 3371, OMNIBUS CRIME CONTROL ACT OF 1991, H.R. REP. No.405, 102d Cong., 1st Sess. (1991), reprinted in 137 CONG. REC. HI 1,686-HI 1,744 (daily ed.Nov. 26, 1991). See generally Paul Houston, House, Senate Conferees Agree on Big Crime Bill, S.F.CHRON., Nov. 25, 1991, at Al (explaining history of agreement). The conferees adopted theSenate version of the Brady bill, with only minor modifications. See JOINT EXPLANATORYSTATEMENT OF THE COMMrIEE OF CONFERENCE, H.R. REP. No. 405, 102d Cong., 1st Sess.(1991), reprinted in 137 CONG. REC. at HI 1,740 (explaining that House conferees assented toadoption of Senate version of Brady bill with modifications including: (1) waiting period is tobe triggered when firearms transferor rather than transferee notifies chief local law-enforce-ment officer of contents of transferee-information statement; (2) waiting-period exemptionbased on remote location is to be additionally conditioned on existence of local ratio of lessthan 2.5 law-enforcement officers per 1000 square miles; and (3) funding grants for improve-ment of criminal records are to be administered by Bureau of Justice Statistics).

In letters to the Republican leaders of Congress, President Bush threatened to veto thecrime bill because of his objections to provisions relating to habeas corpus reform, the exclu-sionary rule, and the death penalty. Letter from President George Bush to Rep. Robert H.Michel (Nov. 25, 1991), reprinted in 137 CONG. REC. Hl1,678-79 (daily ed. Nov. 26, 1991);Letter from President George Bush to Sen. Robert Dole (Nov. 25, 1991), reprinted in 137CONC. REC. S18,671 (daily ed. Nov. 27, 1991). The House nevertheless approved the crimebill by a 205-203 vote. 137 CONG. REC. H11,756 (daily ed. Nov. 26, 1991). After the Senatefailed to agree to close debate on the conference report, however, Congress adjourned for theyear without taking final action on the legislation. 137 CONG. REC. S18,616 (daily ed. Nov. 27,1991). Senator Joseph Biden criticized Senate Republicans for taking "the final step" that"killed what would be the toughest anticrime law in U.S. history." Id- at S18,665.

4. See EDWARD PJ. CORBETr, CLASSICAL RHETORIC FOR THE MODERN STUDENT 3 (2d ed.1971) (stating that rhetoric is about using language, either spoken or written, to inform, per-suade, or move audience); CHAYM PERELMAN, THE REALM OF RHETORIC 5 (1982) (describingrhetoric as entire range of discourse directed toward persuasion regardless of audience or

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rhetoric is to accuse the opponent of nothing more than trying topersuade the audience that the person's position is the better one.

This does not mean that all rhetoric is above reproach, for there isgood rhetoric and bad rhetoric. Good rhetoric is grounded in logicand sound reasoning. Bad rhetoric is grounded in fallacy. A fallacyis a type of incorrect argument.5 A fallacious argument is one thatappears to be correct but proves upon scrutiny to be logically inva-lid.6 Examples range from the familiar, such as "circular reasoning"or "begging the question," to the esoteric, such as "affirming theconsequent" and the "undistributed middle term."' 7

Fallacious reasoning is bad rhetoric, but not because it is ineffec-

subject matter); W. Ross WINTERowD, RHETORIC, A SYNTHESIS 77 (1968) (defining rhetoric asart of trying to persuade about any particular subject).

5. SeeJEREMY BENTHAM, THE HANDBOOK OF POLITICAL FALLACIES 3 (Torchbook ed. 1962of Harold A. Larrabee rev. ed. 1952) (1824) (defining fallacy as argument used for purpose ofdeceiving); IRVING M. CoPx, INTRODUCTION TO LOGIC 52 (2d ed. 1961) (defining effect of fal-lacy as making reasoning incorrect); W. WARD FEARNSIDE & WILLIAM B. HOLTHER, FALLACY:THE COUNTERFEIT OF ARGUMENT 3 (1959) ("The word 'fallacy' is sometimes used as a syno-nym for any kind of position that is false or deceptive, and sometimes it is applied in a morenarrow sense to a faulty process of reasoning or to tricky or specious persuasions."); C.L.HAMBLIN, FAUACIES 12 (1970) ("A fallacious argument.., is one that seems to be valid but is notso."); MADSEN PIRIE, THE BOOK OF THE FALLACY vii (1985) (defining fallacy as "[any trick oflogic or language which allows a statement or a claim to be passed offas something it is not").

Aristotle, from whose work all subsequent study of fallacies descended, defined fallacies inmuch the same way:

That some reasonings are genuine, while others seem to be so but are not, is evident.This happens with argument, as also elsewhere, through a certain likeness betweenthe genuine and the sham .... [B]oth reasoning and refutation are sometimes genu-ine, sometimes not, though inexperience may make them appear so....

1 ARISTOTLE, De Sophisticis Elenchis, in THE WORKS OF ARISTOTLE 164' 1. 23 (W.D. Ross ed. &W.A. Pickard-Cambridge trans., 1928) [hereinafter De Sophisticis Elenchis].

6. T. EDWARD DAMER, ATrACKING FAULTY REASONING 3 (1980).7. See generally DAMER, supra note 6 (analyzing 64 fallacies). The fallacy of the "undis-

tributed middle term" results from inferring a conclusion from two premises where the mid-dle term of the syllogism is not distributed to either premise. Ia at 122. Damer explains thefallacy of "affirming the consequent" as a conditional statement that affirms the consequentpremise or statement instead of properly affirming the antecedent premise or statement. Id.

Aristotle originally classified 13 fallacies in De Sophisticis Elenchis. De Sophisticis Elenchis, supranote 5, at 165 I. 23-169' 1. 22. He divided them into two groups: fallacies dependent onlanguage and fallacies not dependent on language. The fallacies dependent on language in-cluded ambiguity, amphibole, combination, division of words, accent, and form of expression.Id. at 165b 1. 25-165' 1. 28. The fallacies not dependent on language included those depen-dent on accident, qualifications based on time, place, or relation, dependent on ignorance ofmeaning or refutation, dependent on consequent, dependent on original premise, dependenton causation, and dependent on joining several questions into one. Id. at 166b 1. 20-166b 1. 30.

David Fischer lists 11 groups of fallacies in his extraordinary work, Historians' Fallacies. SeeDAVID H. FISCHER, HISTORIANS' FALLACIES VIII, 337-38 (1970) (dividing each group intoseven or more individual fallacies for more than 100 specific definitions). Fearnside andHolther discuss 51 fallacies in Fallacy: The Counterfeit Argument. See FEARNSIDE & HOLTIIER,supra note 5, at v-vi (grouping specific fallacies into nine larger groups: faulty propositions,faulty constructions, emotional coloration, misuse of authority, stirring up prejudice, rational-ization and lip service, biased misconstructions, diversions, and logical fallacies).

Madsen Pirie's work, The Book of Fallacy, while not scholarly, is a useful guide to 76 differentfallacies. See PIRIE, supra note 5, at 183-87 (providing in lexicon format humorous and easilyunderstandable definitions of fallacies).


tive as a tool of persuasion." In fact, quite the contrary is true.Sadly, the lesson learned from the study of rhetoric is that whilebeing "right" is helpful it is not necessarily a prerequisite to win-ning an argument. As demonstrated in this Article, fallacies can bepowerful tools of persuasion. A skilled sophist may employ fallaciesto divert the attention of listeners from the real issue being debated,lead them to accept false premises or ignore conflicting evidence,cause them to reason by emotion rather than by logic, or even fore-stall them from questioning the speaker's position altogether. If ef-fectiveness was used as a barometer for evaluating rhetoric, the"good" and "bad" labels probably would have to be reversed.

Fallacies are bad rhetoric because they lead to bad decisionmak-ing. The essential premise of this Article is that it is better to makedecisions based on straight thinking than on crooked thinking. 9

While this may seem to state the obvious, an examination of therhetoric used in virtually any political debate shows that we usuallydo not abide by this principle in the arena of public decisionmaking.As Jeremy Bentham documented more than one hundred and fiftyyears ago, fallacies are common in the discussions of important so-cial issues in democratic systems.10 Indeed, there seems to be a pos-itive correlation between the importance of an issue, at least asperceived by the populace, and our readiness to resort to bad rheto-ric in debating it.

Gun control is a premiere example of such an issue. As demon-strated by the debate over the Brady bill, few issues are capable ofgenerating such intense rhetorical conflict among the Americanpeople. As with other controversial issues such as abortion and af-firmative action, opinions about gun control are almost always pas-sionately held and in diametric opposition.

Regrettably, while there is room for reasonable persons to disa-gree about gun control,I' we have as a nation chosen to disagree in

8. DAMER, supra note 6, at 4.9. See DAMER, supra note 6, at 4 (supporting premise that bad rhetoric, or rhetoric con-

taining error, often leads to faulty conclusions).10. See BENTHAM, supra note 5, at 246 (arguing that fallacies flourish in political systems

that allow free speech and operate on basis of popular assent). Bentham argued that fallacy inessence is fraud. Id He further believed that such fraud was used especially in democraciesbecause dictators who can resort to force do not need to resort to fraud. Id.

11. While there is fierce disagreement regarding the solution to gun violence, it is un-likely that anyone would dispute the magnitude of the problem. Firearms are used to killmore than 30,000 persons each year in the United States. THE GUN CONTROL DEBATE 12 (LeeNisbet ed., 1990) [hereinafter THE GuN CONTROL DEBATE]. Though precise statistics are notavailable, it is estimated that for every firearm fatality there are five non-fatal firearm injuries.Bill Stokes, Daily Devastation; Faulty Thinking About 'Accidents' Is Hurting Us More Than We Think,CHi. TRIB., Oct. 7, 1990, (Sunday Good Health Magazine) at 8, 32.

Handguns, which are the target of most gun control efforts, are responsible for roughly

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a most disagreeable manner. Excepting a limited number of schol-arly commentaries, 12 discourse on gun control has been plagued bybad rhetoric. The Brady bill debate exemplifies the prevalence ofpoor rhetoric and defective reasoning in gun control argumenta-tion. At its best, the debate over the Brady bill seldom rose abovethe level of shrill hyperbole.' 3 At its worst, the discussion sank intothe muck of name-calling and non sequitur.14

22,000 of the annual firearm deaths. David L. Wilson, The Numbers Game: The Data Behind thePolicy, NAT'LJ.,July 21, 1990, at 1796. In 1988, 8,915 people were murdered with handgunsin the United States. Wayne King, Sarah and James Brady; Target: The Gun Lobby, N.Y. TIMES,Dec. 9, 1990, (Magazine), at 80. This compares with only 7 handgun murders in Great Brit-ain, 8 in Canada, 19 in Sweden, and 53 in Switzerland. Id In addition, approximately 1,200people die in accidental shootings in the United States each year. Wilson, supra, at 1796. Themajority of handgun deaths are suicides, which occur at the rate of about 12,000 per year. Id.

Every day in this country, 25 people are murdered with handguns, 33 women are raped atgunpoint, 575 people are the victims of armed robberies, and 1,116 people are assaulted witha gun. King, supra, at 80. Since 1984, there has been a 977% increase in youth firearmmurders. Youth Homicide and School Violence at Record Levels, New Center Research Shows, HANDGUNCONTROL SEMI-ANNUAL PROGRESS REPORT (Handgun Control, Inc., Washington, D.C.), Jan.1991, at 6. Gun violence is the leading cause of death among African-American youths, ad-ding a racial dimension to the tragedy. 137 CONG. REC. H2815 (daily ed. May 8, 1991) (state-ment of Rep. Norton). In 1988, 44% of all deaths among African-American males in the agerange from fifteen to twenty-four were caused by firearms. Id.

12. Most of the scholarly commentary regarding gun control relates to the proper inter-pretation of the Second Amendment. Three symposia have been devoted primarily to thisissue. See generally Symposium, Gun Control and the Second Amendment, 15 U. DAYrON L.REV. 1 (1989) (containing articles: Keith Ehrman & Dennis Henigan, The Second Amendment inthe Twentieth Century: Have You Seen Your Militia Lately? 5; Robert Dowlut, Federal and State Con-stitutional Guarantees to Arms 59; Stephen Halbrook, Encroachments of the Crown on the Liberty of theSubject: Pre-Revolutionary Origins of the Second Amendment 91;Joshua Horwitz, Kelley v. R.G. In-dustries: A Cause ofActionfor Assault Weapons 125;JamesJacobs, The Regulation of Personal Chemi-cal Weapons: Some Anomalies in American Weapons Law 141); Symposium, Gun Control, 49 LAw &CONTEMP. PROBS. 1 (1986) (containing articles: James Jacobs, Exceptions to a General Prohibitionon Handgun Possession: Do They Swallow Up the Rule? 5; Gary Kleck, Policy Lessons from the RecentGun Control Research 35; Margaret Howard, Husband-Wife Homicide: An Essay From a Family LawPerspective 63; Daniel Polsby, Reflections on Violence, Guns, and the Defensive Use of Lethal Force 89;Lance Stell, Close Encounters of the Lethal Kin& The Use of Deadly Force in Self-Defense 113; RobertShalhope, The Armed Citizen in the Early Republic 125; Don Kates, Jr., The Second Amendment: ADialogue 143; Stephen Halbrook, What the Framers Intended: A Linquistic Analysis of the Right to"Bear Arms" 15 1; Robert Batey, Strict Construction of Firearm Offenses: The Supreme Court and theGun Control Act of 1968 163; Alan Lizotte & Marjorie S. Zatz, The Use and Abuse of SentenceEnhancement for Firearms Offenses in California 199; Note, The Public Use Test: Would a Ban on thePossession of Firearms Require Just Compensation? 223;John Hasbo, Gun Control: A Selective Bibliog-raphy 251); Second Amendment Symposium: Rights in Conflict in the 1980's, 10 N. Ky. L. REV. 1(1982) (containing articles: Edward Kennedy, The Handgun Crime Control Act of 1981 1; Ste-phen Halbrook, To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791 13; Windle Turley, Manufacturers' and Suppliers' Liability to Handgun Victims 41; Richard E.Gardiner, To Preserve Liberty - A Look at the Right to Keep and Bear Arms 63; Martin Ashman,Handgun Control by Local Government 97; Ann Gottlieb, Gun Ownership: A Constitutional Right 113;Samuel Fields, Guns, Crime and the Negligent Gun Owner 141; Darell Pierce, Comment, SecondAmendment Survey 155). For additional academic commentary regarding the Second Amend-ment, see sources cited infra notes 200-01, 209.

13. See infra notes 124-40 and accompanying text (discussing hyperbole in context ofBrady bill debate).

14. See infra notes 108-11 and accompanying text (listing disparaging names used byboth supporters and opponents of Brady bill).


This Article exposes the fallacies in the rhetoric of gun control.Concentrating on the debate over the Brady bill, the Article guidesthe reader through the treacherous terrain of gun control argumen-tation by identifying and analyzing the wide variety of reasoning de-fects employed by participants in the debate. The Article is processoriented. No attempt is made to address the ultimate question ofwhether the nation's gun policies should be reformed. Until we firstreform the debate, we cannot hope to approach law reform in a ra-tional way.

In analyzing the rhetoric of gun control, I have attempted to befair and balanced, attacking the flaws in reasoning on both sides ofthe debate. As a proponent of gun control, I initially thought thisapproach would prove difficult. Gun control advocates like to be-lieve that only those who oppose gun control are guilty of deceptiveand fallacious rhetoric, but scrutiny of the Brady bill debate revealsthat this assumption is false.' 5 The pro-Brady bill forces contrib-

15. See infra notes 46-49, 90, 104, 112, 116, 133, 166, 177, 183 and accompanying text(giving examples of fallacious or deceptive reasoning used by gun control advocates). Tradi-tionally, the rhetoric of gun control was largely one sided, flowing predominantly from theanti-gun control movement. This perceived lopsidedness was fueled at least partially by thesuccess of the National Rifle Association (NRA) in controlling the debate. See AlexPrud'homme, A Blow to the NRA; The House Takes an Overdue Standfor Gun Control, TIME, May 20,1991, at 26 (asserting that NRA traditionally overpowered rival gun control organizations byhaving more than twice as many members and 10 times greater budget). RepresentativeCharles E. Schumer characterized the NRA's control on Congress as a "stranglehold," cou-pled with an "aura of invincibility." ME. In 1991, the organization had a staff of 450, 2.6million members, and boasted an annual budget of $87 million. Michael Isikoff, NRA SelectsHard-Liner as Gun Bill Battle Nears, WASH. PosT, Apr. 16, 1991, at A5.

One factor in the NRA's dominance of the rhetorical arena has been its intimidation strat-egy. Consider this resolution adopted by the NRA at a 1990 meeting in response to the suc-cess of recent state and federal gun control initiatives:

WHEREAS this unprecedented string of legislative defeats and outrageous polit-ical backstabbing cannot and will not be tolerated by the membership of this Associa-tion,

THEREFORE, BE IT RESOLVED, that the membership of the National Rifle As-sociation of America . . . pledges that we shall not soon forgive, and shall neverforget, the betrayals of those politicians who once sought our support and will needit again ....

Members Meeting Adopts Resolution, AMER. RIFLEMAN, Dec. 1990, at 50.Experience has shown that the NRA backs up its threats. After former Representative Peter

Smith spoke out in favor of legislation to ban assault weapons, the NRA spent approximately$20,000 on a direct mail and advertising campaign to unseat him from the House of Repre-sentatives. Stephanie Saul, NRA Takes Aim at Brady Bill, NEwsDAY, Apr. 16, 1991, at 19. Helost his bid for reelection. Id. Smith said the NRA created an "aura of anger" against him thatprompted NRA supporters to shoot at his campaign signs, harass his family by telephone, andtry to run his mother's car off the road. Id An NRA spokesperson said the organization doesnot condone such conduct. Id. Yet the unmistakable message the organization sends to poli-ticians is that it is a mistake to oppose or hinder the NRA. Id.

The climate has changed in recent years, however. As gun violence continues to escalate,more and louder voices are being heard from the other side. A pro-gun control lobbyingorganization named Handgun Control, Inc. (HCI) has emerged as a formidable counter-weight in the gun control debate. Michael Isikoff, The Brady Bill: Success and Growing Pains,WASH. Pos-r, May 31, 1991, at A17 [hereinafter Isikoff, The Brady Bill]. While it still lags far

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uted more than enough bad rhetoric to the gun control debate toallow for relatively evenhanded treatment of the two sides of theissue.

1 6

The importance of dissecting gun control rhetoric extends be-yond the issue of gun control, or even law reform in general. Un-derstanding rhetoric is a process every student of the law shouldcare about. Rhetoric is the art of persuasion and persuasion is thelawyer's stock in trade. Advocates cannot be completely effectiveunless they first master the tools of advocacy. Learning to distin-guish between good rhetoric and bad rhetoric, that is, learning torecognize and identify flaws in reasoning, is an essential part ofevery lawyer's education.

I. REASON: THE MISSING LINK IN GUN CONTROL RHETORIC

The foundation of reasoned, rational discourse concerning guncontrol is surprisingly thin. Many Americans would be shocked tolearn that an issue they consider vitally important' 7 is not treated asimportant by those with the power to make it so. For example, theUnited States Supreme Court has analyzed the Second Amendment

behind the NRA in resources, HCI boasts a $6.5 million annual budget and a mailing list ofmore than one million supporters. Id. Regrettably, as this Article indicates, improved balancehas done little to improve the content of the gun control debate. As more pro-gun controlvoices are being heard, so also is much of the same bad rhetoric suffered under the empery ofthe NRA. See infra notes 90-110 and accompanying text (providing examples of bad rhetoricin context of Brady bill debate).

16. See infra notes 46-49, 90, 104, 112, 116, 133, 166, 177, 183 and accompanying text(providing examples of bad rhetoric used by proponents of Brady bill). I make no pretense ofcomplete objectivity. While an awareness and understanding of fallacies makes it easier toavoid them, no one can be entirely immune from the self-deception that taints his or herreasoning concerning emotionally charged issues. See infra notes 255-57 and accompanyingtext (discussing fallacies that arise as result of self-deception). The ease with which one cansuccumb to fallacious reasoning became painfully obvious to me when I reviewed an earlierpiece I had written advocating strict liability for handgun manufacturers. To my chagrin, Irecognized some of the same emotionally based fallacies that I attack herein. See Andrew J.McClurg, Handguns as Products Unreasonably Dangerous Per Se, 13 U. ARK. LrME ROCK LJ. 599(1991).

17. Some evidence of the importance of this issue to the American public is found in theattention devoted to the Brady bill debate by the popular media. A search of the LEXIS Omnifile on July 17, 1992, using the search term "Brady bill," disclosed 1,732 articles discussingthe bill. Search of LEXIS, Nexis library, Omni file (July 17, 1992). Another indication of theissue's importance to the American people is their willingness to contribute money to thecause. The NRA's $87 million annual budget and the fledgling HCI's $6.5 million annualbudget attest that gun control is a cause in which Americans are willing to invest. See supranote 15 (discussing activities of NRA and HCI).

The passion with which people hold their views concerning gun control became apparent tome while delivering presentations on the subject to high school students. During one suchpresentation, a young woman from rural Arkansas raised her hand and asked me to name themost important thing in the universe to me. Bewildered, I answered that it would be mydaughter. With conviction seldom seen, she said the most important thing to her was a pearl-handled revolver that her grandmother had given her and that she would shoot anyone whotried to take it away from her. I encountered similar sentiments from several other students.


in a substantive context in only one case this century I8 and in onlyfour cases in history.19 And as Professor Sanford Levinson noted ina recent article, the Second Amendment appears in leading constitu-tional law casebooks only as part of the text of the Constitution,which is generally reprinted in the casebooks' appendices. 20 He fur-ther observed that constitutional law treatises devote only minimalattention to the Amendment. 21

This deficiency in what I call professional discourse makes the is-sue of gun control disturbingly unique. Discourse concerning issuesof law reform usually occurs at two levels: popular and professional.Popular discourse is discourse among and for dissemination to thepopulace and includes lunch room banter, letters to the editors ofnewspapers and magazines, and congressional floor debate. Profes-sional discourse consists of legal argument, judicial opinions, andscholarly commentary. Such discourse generally occurs in a morecarefully reasoned manner.

There is both less room and less cause for the appearance of falla-cies in the context of professional discourse. For example, althoughfallacies of reasoning are not uncommon in judicial decisions, 22

judges at least try to justify their results using sound logic. 28 Judges

18. See United States v. Miller, 307 U.S. 174, 177-83 (1939) (reversing district court deci-sion that National Firearms Act violated Second Amendment); see also infra notes 206-16 (dis-cussing Miller in context of Second Amendment).

19. See Miller, 307 U.S. at 177-83; Miller v. Texas, 153 U.S. 535, 537-38 (1894) (dis-missing Second Amendment challenge to Texas gun control statute for lack ofjurisdiction);Presser v. Illinois, 116 U.S. 252, 258-67 (1886) (holding that Second Amendment only re-stricts power of Congress and Federal Government, not power of states); United States v.Cruikshank, 92 U.S. 542, 553 (1875) (holding that Second Amendment does not create rightto bear arms but rather that right exists independent from Constitution). In 1991, the Courtdeclined an opportunity to interpret the Second Amendment when it denied certiorari inFarmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), cert. denied, 111 S. Ct. 753 (1991). Theissue in Farmer was whether the Firearms Owners' Protection Act of 1986, 18 U.S.C. § 922(o)(1988), prohibits private possession of machine guns not lawfully possessed prior to the stat-ute's effective date. Farmer, 907 F.2d at 1042. The Bureau of Alcohol, Tobacco and Firearmsdenied Farmer, the plaintiff, permission to make and register a machine gun, so he filed anaction for declaratory judgment and writ of mandamus to compel the Bureau to approve hisapplication. Id. The Eleventh Circuit Court of Appeals ignored Farmer's Second Amend-ment claim and held that the Act did indeed impose a blanket ban on private possession ofmachine guns not lawfully possessed prior to the Act's effective date. Id. at 1045.

20. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE LJ. 637, 639 n.14(1989).

21. Id. Levinson also noted that only one article concerning the Second Amendment(other than his) has ever appeared in an "elite" law journal. i at 639 n.13 (citing Don Kates,Handgun Prohibition and the Orinal Meaning of the Second Amendment, 82 MICH. L. REV. 204(1983)).

22. See PIERRE SCHLAG & DAVID SKOVER, TAcTIcs OF LEGAL REASONING 55-105 (1986)(analyzing reasoning defects in representative cases in areas of property law, criminal law,constitutional law, and tort law); see also Andrew J. McClurg, Logical Fallacies and the SupremeCourt: A Critical Examination ofJstice Rehnquist's Decisions in Criminal Procedure Cases, 59 U. CoLo.L. REV. 741, 762-832 (1988) (analyzing fallacies injustice Rehnquist's opinions).

23. This is not to say that the reasons given in a written opinion are the real bases for the

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are prevented from succumbing too readily to fallacy by their legaltraining and ethical responsibilities, 24 and because their audience,which consists largely of lawyers and other judges, demands goodreasoning.25 Moreover, because theirs is an educated audience thatis capable of and willing to digest complex reasoning, judges haveless cause to utilize fallacies to prove their points. Judges can writeopinions knowing that their rhetoric will not be evaluated solely onthe basis of a ten-second "sound bite." 26

The same conditions hold true with respect to other professionalparticipants in the law reform process. Law students are trained to

decision. Jerome Frank and other American legal realists convincingly attacked the conven-tional notion that judges decide cases through deductive logic by applying neutral legal rulesto objectively determined facts. See Pierre Bourdieu, The Force of Law: Toward a Sociology of theJuridical Field, 38 HATINGS L.J. 805, 825 (1987) (stating that legal realists demonstrated im-possibility of perfectly rational judicial methodology); Allan Hutchinson & Patrick Monahan,The "Rights" Stuff Robert Unger and Beyond, 62 TEX. L. REv. 1477, 1507 (1984) (explaininglegal realists' position that deductive logic cannot resolve all doctrinal ambiguity). The real-ists asserted that judicial results can best be explained by reference to external stimuli thatform a judge's values, prejudices, disposition, or temperament. See, e.g. ,JEROME FRANK, LAWAND THE MODERN MIND 119 (1930) (positing that emotions, biases, and prejudices ofjudgesimpede flexibility and predictability ofjudicial system); Charles G. Haines, General Observationson the Effects of Personal, Political and Economic Influences in the Decisions ofJudges, 17 U. ILL. L. REV.98, 116 (1922) (citing factors such as judges' educational background, family and personalassociations, wealth and social positions, legal and political experiences, political affiliationsand opinions, and intellectual and temperamental habits as key guideposts in determiningwhich way judge will decide case); Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV.457, 466 (1897) (arguing that judges make particular choices in deciding cases because ofbeliefs as to community or class practices and because of policy opinions or general attitudestoward matters); see also Ex Parte Chase, 43 Ala. 303, 311 (1869) (suggesting that judicialpower may be misdirected "by a fit of temporary sickness, an extra mint julep, or the smell orlooks of a peculiar raincoat").

The fact that written opinions follow a logical form, the realists argued, is irrelevant be-cause courts have great leeway in selecting the premises necessary to achieve this structure.As author Jerome Frank has written:

The court can decide one way or the other and in either case can make its reasoningappear equally flawless. Formal logic is what its name indicates; it deals with formand not with substance. The syllogism will not supply either the major premise orthe minor premise. The "joker" is to be found in the selection of these premises.

FRANK, supra, at 72; see also Holmes, supra, at 465-66 ("The language of the judicial decision ismainly the language of logic.... You can give any conclusion a logical form.").

24. See AMERICAN BAR Assoc., MODEL RULES OF PROFESSIONAL CONDUCr AND CODE OFJUDICIAL CONDUCT 138 (1989) (stating in Canon 3 that "[a] judge should perform the dutiesof his office impartially and diligently").

25. Early in my legal career, while clerking for the Honorable Charles R. Scott, lateUnited States District Judge for the Middle District of Florida, I learned a valuable lessonabout judging: that a primary motivation for judges in deciding any case is to avoid beingreversed by an appellate court. Reversal not only means extra work, it is the judicialequivalent of having a big, red "F" slashed across a test paper. Judge Scott used to refer tothe Eleventh Circuit Court of Appeals as "my master's voice."

26. "Sound bite" is a term used to characterize the terse and abbreviated treatment af-forded by the modem television news media to the discussion of often complex social issuesby political candidates, with the effect of encouraging politicians to mold their public state-ments with this coverage in mind. The result in many instances is overly dramatic and overlysimplified debate on important public issues.


reason well. 27 They learn early on that their professors will not ac-cept emotional or "gut" reactions that are unsupported by reasonedargument. Similarly, judges demand that lawyers present sound ar-guments to support their positions. While fallacies no doubt occur,reason predominates.

As to most important law reform issues, discourse occurs simulta-neously at both the popular and professional levels. While the pub-lic is debating abortion, for example, lawyers are arguing, judges aredeciding, law students are studying, and scholars are writing aboutreal cases involving abortion. This professional discourse serves asan anchor of reason in the debate; that is, no matter how bombasticor outrageous the popular discourse becomes, a foundation of ra-tionality exists in the professional dialogue that is available to guidethe decisionmaking of those vested with power to reform the law.

In contrast, the gun control debate lacks an adequate body of pro-fessional discourse,28 leaving us with only the "low road" of populardiscourse to guide us toward resolving this vital issue. As seen inthis Article, it is a very low road indeed. In recent years, the guncontrol debate has taken on the "anything goes" appearance of aprofessional wrestling match. The rules of intellectually honest de-bate are ignored. Illicit stratagems designed to gain competitive ad-vantage are as likely to be cheered as jeered. As a member of theaudience watching this ugly contest, I have never been quite surewhether to sit back and laugh at the absurdity of it all or to jump inthe ring swinging a chair. I finally concluded that a debate in whichfallacy so completely obscures reason is not simply unproductive, itis a dangerous way to decide an issue as important as gun control.Regardless of one's views concerning gun control generally or theBrady bill in particular, the defective arguments catalogued in thisArticle should give the reader good reason to pause and reassess themeans by which the American people will decide the future of gunsin this country.

II. THE FALLACIES OF GUN CONTROL RHETORIC

The fallacies of gun control rhetoric tend to be informal ratherthan formal fallacies. Formal fallacies are arguments that are defec-

27. See Alan D. Hornstein, The Myth of Legal Reasoning, 40 MD. L. REv. 338, 339 (1981)(deconstructing steps involved in legal reasoning and pointing out similarities between legalreasoning and other forms of formal reasoning). While law professors are fond of tellingstudents that law school trains them to "think like lawyers," I agree with Professor Hornsteinthat this really means nothing more than learning to reason well. Id.

28. See supra note 12 and accompanying text (citing significant scholarly works on issue ofgun control).

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tive because of improper form, without regard to content.29 Argu-ment form is dictated by the rules of logic developed in the contextof Aristotelian syllogisms.30 Syllogisms are analyzed by logiciansin terms of their validity rather than their truth. In formal logic,validity depends only on the form of the argument. Content isirrelevant.3 1 In the world of practical argumentation, however, thecontent of an argument is vital.

To illustrate, suppose that a person opposed to gun control ad-vanced the following syllogistic argument:

The Second Amendment protects an individual's right to keepand bear any type of arm.A nuclear weapon is a type of arm.Therefore, the Second Amendment protects an individual's rightto keep and bear nuclear weapons.

This syllogism is perfectly valid from a formal standpoint, yet anyaudience would most likely reject the argument because the contentis flawed. The audience would dispute the truth of the major prem-ise that the Second Amendment protects an individual's right topossess any type of arm. This illustration demonstrates that whilecontent is not a concern of formal logic, content is crucial to thesoundness of practical argumentation. The label used to denote allsuch content-based fallacies is that of "informal fallacy."

No attempt has been made to classify the fallacies evaluated inthis Article in a rigorously systematic way. As De Morgan said:"There is no such thing as a classification of the ways in which menmay arrive at error: it is much to be doubted whether there ever canbe." 32 Several scholars have made efforts to categorize fallacies, buteach attempt has had rather arbitrary results.3 3 This is not surpris-

29. See MORRIS COHEN & ERNEST NAGEL, AN INTRODUCTION TO Lo;ic AND SCIENTIFICMETHOD 376 (1934) (describing structural flaw inherent in formal fallacy).

30. A syllogism is a deductive argument consisting of three terms (major, middle, andminor) and three propositions (major premise, minor premise, and conclusion). Deductivearguments are those in which the conclusion necessarily follows from the premises. If thepremises of the syllogism are true and the syllogism is valid, the conclusion must be true. Thefollowing example from Aristotle is illustrative:

All men are mortal;Socrates is a man;therefore Socrates is a mortal.

I ARISTOTLE, Analytica Priora, in THE WORKS OF ARISTOTLE 2 5 b 1. 38 (W.D. Ross ed., AJ. Jen-kinson trans., 1928) [hereinafter Analytica Piiora]. For a more extensive explanation of syllo-gisms, see COHEN & NAGEL, supra note 29, at 76-78 and Copi, supra note 5, at 168-71.Aristotle's classic discussion of the syllogism is found in Analytica P'iora. Analytica Priora, supra,at 241 1. 10.

31. See Copi, supra note 5, at 33 ("mrlhe truth or falsehood of [an argument's] conclusiondoes not determine the validity or invalidity of an argument.... The logician is interested inthe correctness even of arguments whose premises might be false.").

32. AUGUsTUs DE MORGAN, FORMAL LOGIC 237 (A.E. Taylor ed., 2d ed. 1926) (1847).33. See, e.g., De Sophisticis Elenchis, supra note 5, at 16 5b 1. 23-168' 1. 17 (explaining Aris-


ing. Because we do not think in fixed ways, there is no reason tobelieve the reasonings we construct can be classified in fixed ways.3 4

Moreover, any attempt to classify fallacies is immediately stalled bythe fact that a single argument may contain several fallacies. Thisoverlap necessitates cross-divisions that invariably dilute the classi-fication scheme. Accordingly, this Article adopts a simple methodof classification, dividing the fallacies of gun control into threebroad categories: fallacies of emotion, fallacies of diversion, and fal-lacies of proof. Within each category, several specific fallacies arediscussed.

A. Fallacies of Emotion

1. Appeals to fear and sympathy

In arguing against the Brady bill on the House floor, Representa-tive Barbara Vucanovich, a Republican from Nevada, invoked thetragic episode of serial murders that occurred in Gainesville, Floridain the summer of 1990.35 She posed the following query: "If theBrady bill were law, who knows how many more young womenwould be dead in Gainesville because they had to wait to protect

totle's division of his 13 original fallacies into two groups: fallacies dependent on languageand fallacies outside language); supra note 7 (listing classifications of fallacies devised by sev-eral authors). Aristotle's fallacies dependent on language all involve problems arising fromthe ambiguity of language. De Sophisticis Elenchis, supra note 5, at 1651 1. 23-168' 1. 17. Forexample, equivocation, the simplest case of ambiguity, occurs when a word is used in twodifferent senses in the same context, as in the following example:

Some dogs have fuzzy ears.My dog has fuzzy ears.Therefore my dog is some dog.

CopI, supra note 5, at 74. This syllogism is fallacious because it confuses two different mean-ings of the word "some." In the first premise, "some" is used to mean a portion of the whole;in the second, the term means "exceptional" or "great." The fallacies dependent on lan-guage are seldom encountered in the real world of practical argumentation, however. WhileAristotle's fallacies dependent on language constitute a relatively coherent class, his fallaciesoutside language do not have any common feature except that most of the fallacies could belabeled as material fallacies rather than simply as fallacies of form. SeeJOSEPH G. BRENNAN, AHANDBOOK OF LOGIC 208-23 (2d ed. 1961) (critiquing prior categorizations of fallacies, in-cluding Aristotle's).

34. In expounding his relatively cogent classification of fallacies, Richard Whatelycommented:

If any one should object, that the division about to be adopted is in some degreearbitrary, placing under the one head Fallacies, which many might be disposed toplace under the other, let him consider not only the indistinctness of all former divi-sions, but the utter impossibility of framing any that shall be completely secure fromthe objection urged, in a case where men have formed such various and vague no-tions, from the very want of some clear principle of division.

RICHARD WHATELY, ELEMENTS OF LOGIC 136 (Scholars' Facsimiles & Reprints 1975) (2d ed.1827).

35. See Peter Applebome, Panic on a Florida Campus After 5 Are Slain, N.Y. TIMES, Aug. 29,1990, at Al (documenting murder of five students at universities in Gainesville, Florida, inAugust 1990).

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66 THE AMERICAN UNIVERSITY LAW REVIEW

themselves."3 6 Then, in almost the same breath, she urged her fel-low representatives "not to let their judgments be clouded by theantigun lobby's emotional banter."3 7

The representative should practice what she preaches. Conjuringup the nightmarish image of defenseless coeds being butchered by amad killer was a blatant attempt to use emotion to generate opposi-tion to the Brady bill. Appeals to emotion are fallacious becauseemotions are irrelevant as a basis for deciding an issue. While emo-tions have psychological relevance in that they have a persuasiveimpact on the human mind, they have no logical relevance becausethey are incapable of establishing the truth of conclusions.38

Proving truth requires the mustering of convincing evidence andnot simply the exploitation of emotional sensitivities.3 9 Emotionsmay move us to act, but reason should control the course of thataction.40

Vucanovich committed at least three fallacies of emotion in onesentence: argumentum ad odium (argument directed to hatred), argu-mentum ad metum (argument directed to fear), and argumentum ad mis-ericordiam (argument directed to pity).41 Her appeal to theseemotions was particularly irrelevant because a handgun waiting pe-riod would have had little effect on the events in Gainesville. Thereis no indication that any of the victims was killed because a waitingperiod kept her from purchasing a handgun, or that any potentialvictim used a handgun to repel, apprehend, or kill the killer. Vuca-novich was simply attempting to provoke opposition to the Bradybill by fabricating an association between the bill and the strongemotions aroused by the serial killings. Vucanovich played on ourhatred and fear of serial murderers, as well as our feelings of pity forthe murder victims. 42 None of this, however, has anything to do

36. 137 CONG. REC. H2859 (daily ed. May 8, 1991) (statement of Rep. Vucanovich).37. Id38. See Cop, supra note 5, at 53, 58-61 (discussing appealing reasons for use of fallacies).

Emotions must be distinguished from reasoning based on values and moral judgments, whichare relevant to rational decisionmaking. See infra note 121 and accompanying text (ex-pounding difference between use and misuse of emotions in argument).

39. See DAMER, supra note 6, at 87 (discussing how interplay of emotion and persuasionoften leads to failure to present evidence that is persuasive independent of emotional aspect).

40. See PIRIE, supra note 5, at 58 (citing Scottish philosopher David Hume as the sourceof stated observation).

41. See HAMBLIN, supra note 5, at 161 (creditingJohn Locke with inventing "argumentumad" labels). Scholars of rhetoric still use these Latin names. Some, like ad hominen, havebecome part of the English lexicon.

42. Like many other fallacies, appeals to pity have a distinguished pedigree. Quotingfrom Plato's Apology, Copi sets out a portion of Socrates' defense of himself in which he re-minds the judges that he is a family man with three young sons, in order to persuade thejudges of his innocence. Cop, supra note 5, at 59. Logically, Socrates' family situation wasirrelevant to the question of his guilt.

[Vol. 42:53


with whether the Brady bill should become law.Unfortunately, Vucanovich's salvo was not unique. Fallacies of

emotion are one of the hallmarks of gun control rhetoric. Vuca-novich's emotional banter was no worse than some of the gunlobby's other scare tactics. After the 1992 Los Angeles riots thatfollowed in the wake of the jury's decision to acquit most of the po-lice officers charged with using excessive force against motoristRodney King, the National Rifle Association (NRA) employed afour-page advertisement to boost membership by shamelessly ex-ploiting the fear and horror generated by images of the violence.43

The advertisement, featuring color pictures of looters and burningbuildings, asked: "Must your glass be shattered? Must your fleshand blood be maimed? Must your livelihood be looted? Must allyou've built be torn down?... What will it take before you stand upwith the one group that will standfor no more?"44 Such tactics are notnew. In 1988, the year Congress first considered the Brady bill, theNRA paid for full-page newspaper advertisements that weredesigned to incite people's fear of being unarmed in an increasinglydangerous and violent America. 45 One advertisement depicted awoman's mangled locket under the headline: "Your mother justsurprised two burglars who don't like surprises." 46 Another showeda high-heel shoe with the heel broken off. It read: "He's followedyou for two weeks. He'll rape you in two minutes." 47

Fear is a great motivator, but'in the gun control debate fear cutsboth ways. It may be dangerous for potential victims of criminals tobe unarmed, but this is partly because many criminals are armed.Not surprisingly, then, the strategy of preying on fear of violentcrime has never been the exclusive province of the gun lobby. Con-sider a law review article adapted from a speech given by SenatorEdward Kennedy urging passage of the Handgun Control Act of

43. NATIONAL RIFLE ASS'N, WHAT WILL IT TAKE? (1992) (magazine advertisement on filewith The American University Law Review).

44. Id The following are additional excerpts from the advertisement:

The evil in L.A. was just a concentrated form of the one-on-one evil that stalksAmerica every nightfall, untouched by gun laws and ignored by media. In dark park-ing lots instead of crowded streets. Smashing through bedroom windows instead ofstore windows. Demolishing lives instead of whole neighborhoods. One lonely wo-man at a time, one businessman at a time, one family at a time, one innocent victim ata time.

Id45. See Mark Udulutch, Note, The Constitutional Implications of Gun Control and Several Realis-

tic Gun Control Proposals, 17 AM.J. CRIM. L. 19, 21 n.14 (1989) (citing Go Ahead, Make Our Day,THE NEw REPUBLIC, Feb. 22, 1988, at 7) (stating that Washington Post, New York Times, andother major publications ran series of nine such advertisements sponsored by NRA).

46. Id.47. Id.

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1981. 4 8 The Senator's essential point was that we need legislationto control handguns because of the prevalence of handgun violence.Rather than express this sentiment in such prosaic terms, however,he opted for loaded words and phrases like "fusillade of bullets,""'carnage," "assassin," "fears and ... tears,". "haunted, .... end thearms race in our neighborhoods," "relentless toll climbs higher,""epidemic," and "plagues the Nation."' 49 And this was all in just thefirst four paragraphs! Emotive words and phrases such as these aredesigned to prejudice an argument by illicitly achieving a more dra-matic effect than could be attained through reason alone.50

While Senator Kennedy's plea went unanswered, 51 other emo-tional appeals, drawing from an ever-expanding inventory of gun-related horrors, have proven more effective in tipping the balance offear toward the side of gun control. In the Brady bill debate, propo-nents used grisly anecdotes and numbing statistics to convince theAmerican people that there is more to fear from criminals havingguns than from non-criminals not having guns.5 2 No stratagem ca-pable of evoking strong emotions was overlooked. Indeed, thename of the bill itself served as a powerful emotional symbol.Handgun Control, Iric., the Washington based anti-gun lobbying or-ganization led by chairwoman Sarah Brady, exploited popular sym-pathy forJim Brady by running advertisements showing Brady in hiswheelchair, saying "[h]elp me beat the gun lobby."53 Some mem-bers of Congress buttressed their support of the bill with inspiredtestimonials to Jim and Sarah Brady.5 4 Others set their emotionalsights more broadly, mourning the plight of beleaguered old peo-ple, innocent children, terrorized families, and police officers on

48. See Edward M. Kennedy, The Handgun Crime Control Act of 1981, 10 N. Ky. L. REv. 1(1982) (presenting text of speech Senator Kennedy delivered on Senate floor on April 9,1981).

49. Id at 1-2.50. See PIRIE, supra note 5, at 111 (describing numerous effects emotionally loaded words

may have on receiver of argument).51. Richard Wolf, Crime Bill Killed by Political Cross Fire, USA TODAy, Nov. 27, 1991, at A4

(citing failure of Senate to pass crime bill prior to end of legislative session).52. See Alison Carper, Clear Shot to N. Y for Running Firearms, NEwsDAv, May 8, 1991, at 7

(depicting infant accidentally killed in crib by illegally purchased gun to support gun control);U.S. Murder Rate Appears Headed for a Record Year, L.A. TMES, Aug. 5, 1991, at A16 (usingextensive statistics to support passage of Brady bill).

53. Saul, supra note 15, at 85.54. See 137 CoNG. REC. H2845 (daily ed. May 8, 1991) (statement of Rep. Downey) ("Let

us not forgetJim Brady.... Let us make sure thatJim Brady's suffering was not in vain."); id.at H2833 (daily ed. May 8, 1991) (statement of Rep. Fish) (stating that "Uim and Sarah Brady]both decided that after Jim's shooting they would rather light a candle than curse the dark-ness, and the Brady bill .. . is indeed that candle"). Whether the Brady bill would haveprevented John Hinckley from purchasing the handgun used to shoot Jim Brady is by nomeans clear. See infra note 56 (discussing debate on whether gun control legislation wouldhave prevented Jim Brady's injury).

[Vol. 42:53

1992] THE RHETORIC OF GUN CONTROL

duty.55

These references to innocent firearm victims, while relevant to theoverall gun control debate, are fallacious arguments in support ofthe Brady bill. They would be germane to the Brady bill contro-versy only if some logical connection could be shown between thevictims' plight and the lack of waiting periods or background checksfor handgun purchasers. Few participants in the debate attemptedto establish any such connection, however, probably because itwould be difficult to do.56 For one thing, the Brady bill would notaffect the estimated 200 million firearms 57 already in circulation.5 8

Whatever good the Brady bill might do, no one can seriously con-tend that the bill could, by itself, reduce the level of gun violence in

55. See, e.g., 137 CONG. REC. H2868-69 (daily ed. May 8, 1991) (statement of Rep.Owens) ("Every week innocent people, including children, are murdered .... These inno-cent adults and children are killed only because they were in the wrong place at the wrongtime. And all too often that wrong place is a crib, a family car, or a living room."); id atH2845 (statement of Rep. Downey) ("Older citizens are forced to stay in their homes at nightbehind locked doors, while criminals rule the streets. Innocent children are terrorized andthreatened. Once quiet neighborhoods have become bloody battlegrounds."); id at H2827(statement of Rep. Weiss) ("Stray bullets have turned mainstreet U.S.A. into a firing range.");id. at H2825 (statement of Rep. Slaughter) (referring to shootouts resulting in children'sdeaths in New York City); Elaine S. Povich, House Passes Brady Bill; Handgun Control MeasureSurvives Furious NRA Lobbying, CI. TRIB., May 9, 1991, at I (quoting Representative CharlesSchumer as saying, "Every child that is still growing up, every cop that still patrols his beat,every family that remains intact-they silently ask us to approve the Brady bill.").

56. See David B. Kopel, Why Gun Waiting Periods Threaten Public Safety (Mar. 25,1991) (unpublished issue paper from Independence Institute), reprinted in 137 CONG. REC.S9046-47 (daily ed. June 28, 1991) [hereinafter Kopel] (noting that Sarah Brady and HCIassert that waiting period and background check would have prevented John Hinckley frompurchasing cheap handgun he used to shoot President Reagan and Jim Brady, but pointingout that such result is far from clear). Hinckley bought the gun he used in the assassinationattempt from a Texas gun shop in October 1980, which was several months before the shoot-ing occurred. Id. Thus, Kopel asserts that a waiting period "would obviously have had noimpact." l Other than the possibility that Hinckley might have changed his mind aboutpurchasing the gun had he been required to wait a few days, this is true.

As to the efficacy of a background check, Hinckley was not a convicted felon and, while hehad been treated for mental illness, no public record of his illness existed. Thus, a back-ground check would not have disclosed his illness. Id. The basis for Sarah Brady and HCI'sclaim that a background check would have prevented the assassination attempt is that Hinck-ley lied about his address when he purchased the gun, using an old Texas driver's license asverification. lId Mrs. Brady claims that a background check would have uncovered this lie,and thus Hinckley would not have been permitted to buy a handgun in Texas. Id. Kopelasserts, however, that a false statement on the federal firearm transaction form would not byitself make the purchase transaction illegal. Id He notes that federal law requires a gunpurchaser to furnish identification only to prove residence in the state of purchase, and not toverify an in-state address. lId So long as Hinckley was a Texas resident, Kopel argues, thetransaction would have been legal. Il Kopel then makes a case for Hinckley's Texas resi-dency based on his attendance at Texas Tech University the summer preceding the assassina-tion attempt. Id.

57. Erik Eckholm, Ailing Gun Industry Confronts Outrage over Glut of Violence, N.Y. TIMES,Mar. 8, 1992, at Al.

58. See S. 1241, 102d Cong., 1st Sess. §§ 2701-2703 (1991) (proposing regulations fornew firearm purchases only).


America. 59 The connection Brady bill supporters sought to makebetween the legislation and senseless handgun violence was largelyan emotional one i la Congresswoman Vucanovich or Senator Ken-nedy, rather than a logical one.60

2. Appeals to pride and popular opinion

Not all the fallacies of emotion are negative in tenor. Resorting tothe fallacy of argumentum adpopulum, both sides in the Brady bill con-test manipulated positive popular sentiments as well as negativeones. There are several variations of argumentum ad populum, whichtranslates to "argument directed to the people." As used here, thefallacy refers to appeals to popular opinion that stimulate and excitethe public to favor a particular position. 6'

Appeals to national pride and patriotism are particularly attractivestrategies for politicians. The Persian Gulf War served as fertileground for these types of appeals. For example, one House mem-ber argued that Congress should approve the Brady bill because"[a]s we learned in the gulf, the best way to defeat the enemy is todisarm him first." 62 Another representative urged his colleagues to"deal with handgun violence as quickly as we dealt with SaddamHussein and his Republican Guard."'63 Not to be outdone, Bradybill opponents alluded to General Norman Schwarzkopf and EasternEuropean freedom fighters as reminders of the preciousness of free-dom.64 Recalling less recent symbols of patriotic pride, an NRA vicepresident, apparently with a straight face, asked, "What if they hadto wait seven days to get their rifles to come to the Alamo and

59. See Kopel, supra note 56, at S9048-49 (citing criminological studies showing thatwaiting periods have little effect on number of crimes committed with guns).

60. Gun control advocates stooped even lower in the related battle over assault weapons.Rivaling the NRA for bad taste, Handgun Control, Inc. sponsored an advertisement showinga hooded Ku Klux Klansman clutching a Colt AR-15 under the headline: "Why Is the NRAAllowing HIM Easy Access to Assault Weapons?" Isikoff, The Brady Bill, supra note 15, at A 17.The Senate voted to ban the manufacture and sale of 14 types of assault weapons as part ofthe Senate Violent Crime Control Act of 1991, a broad-based crime control statute that alsoincluded the Senate's version of the Brady bill. S. 1241, 102d Cong., 1st Sess. § 703 (1991).However, the assault weapon ban failed to pass the House by the surprisingly large margin of247 to 177. Michael Isikoff, House Rejects Attempt to Ban Assault Guns, S.F. CHRON., Oct. 18,1991, at Al, A20. The proposal ultimately was scrapped by House and Senate conferees.Houston, supra note 3, at 1.

61. See generally CopI, supra note 5, at 60-61 (defining ad populum appeal as attempt toarouse feelings and enthusiasm of multitudes); DAMER, supra note 6, at 89-91 (analyzing sev-eral distinct appeals to popular opinion).

62. See Is Seven Days Too Long to Wait to Purchase a Handgun, USA TODAY, May 7, 1991, at10A (quoting statement by Representative Charles Schumer).

63. 137 CONG. REc. H2851 (daily ed. May 8, 1991) (statement of Rep. Stokes).64. Id. at H2837 (statement of Rep. DeLay).


fight? ' 65 Even references to apple pie made it into the debate.66

Again, the flaw here is irrelevance. American pride in our per-formance in the Gulf War has nothing to do with whether it is wiseto impose a waiting period and a background check on handgunpurchases. General Schwarzkopf and the Eastern European coun-tries may be powerful symbols of freedom, but they have no connec-tion to the wisdom or constitutionality of the Brady bill. As for theAlamo, ignoring the unfortunate result there, the Brady bill doesnot apply to rifles, to the military, or to the 200 million guns alreadyowned by American citizens. Thus, Texans should fare well if at-tacked again from the south, even if the Brady bill is enacted. Eachof these appeals to patriotism and national pride, while probablypersuasive to a mass audience, missed the mark of reason by a widemargin.

3. Appeals to improper sources of authority

Positive emotions toward a position can also be engendered byappealing to popular personalities; that is, speakers can promote thecredibility of their arguments by aligning themselves with persons ofoutstanding character and reputation who share their views. This isnot fallacious if these authorities have specialized knowledge con-cerning the problems they address. It is quite proper to call onqualified experts to assist laypersons in making decisions concern-ing matters beyond their knowledge and experience. Lawyers,judges, and juries do it every day.

But where the person is not qualified as an expert on a subject,appealing to that person's judgment as a basis for deciding an issuecommits the fallacy of argumentum ad verecundiam-an improper ap-peal to authority.67 This is true no matter how well known or wellreputed the person may be. Unless a person is an authority on theparticular issue, the person's opinion should not influence thedispute.

While improper appeals to authority may seem too transparent to

65. Michael Isikoff, NRA Leaders Vow All-Out Fight Against 'Brady Bill,' WASH. POST, Apr.14, 1991, at A12.

66. See Desda Moss, New NRA Chief Aims at Diversity, Laws Limiting Guns, USA TODAY, Apr.17, 1991, at 2A (quoting newly elected NRA president Wayne LaPierre as stating that "theNRA's about as mainstream and apple pie as you can get").

67. For a discussion of improper appeals to authority, see BENTHAM, supra note 5, at 25-29 (explaining circumstances under which appeals to authority are fallacious); Copv, supranote 5, at 61-62 (categorizing appeals either as inside or outside experts' field of specializa-tion); DAMER, supra note 6, at 93-94 (discussing improper appeals to unidentified and biasedauthorities and to non-authorities); FEARNSIDE & HOLTHER, supra note 5, at 84-89 (explaininguse and misuse of authority); HAMBLIN, supra note 5, at 42-43 (providing historical overviewof use of improper appeals to authority).

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be beguiling, we nevertheless succumb to this fallacy every day.Otherwise, companies would not pay millions of dollars to popularentertainment personalities to secure testimonials for their prod-ucts. If pop star MichaelJackson drinks Pepsi, it must be better thanCoke. Comedian Jay Leno likes Doritos, so throw out the potatochips. Since athlete Bo Jackson wears Nike athletic shoes, they mustbe superior to those of major competitor Reebok (unless one hap-pens to think more highly of the athletes who endorse Reebok thanof Bo Jackson).

Perhaps the single most important factor influencing the passageof the Brady bill was Ronald Reagan's endorsement of the legisla-tion.68 Mr. Reagan had been a lifetime member of the NRA and wasthe first candidate for President ever endorsed by that organiza-tion.69 When the former President said in "clear, unmistakable lan-guage" that he supported the Brady bill, 70 he deprived gunenthusiasts of one of their most effective and time-honored rhetori-cal weapons and handed an equally formidable one to the otherside.71 Haunted by the ghost of Willie Horton, Brady bill support-ers, most of whom were Democrats, had to be wary of being por-trayed as more concerned about gun control than about crimecontrol.72 But with Ronald Reagan on their side, no longer could it

68. SeeJohn A. Farrel, Senate OK's 5-Day Wait for Hand Gun Purchases, BOSTON GLOBE,June29, 1991, at bl (stating that turning point in campaign for legislation was Reaganendorsement).

69. See Chuck Conconi, WASH. PosT, June 23, 1988, at B3 (reporting that Reagan, life-time NRA member, is believed to be first candidate for President ever to be endorsed byNRA).

70. Ronald Reagan, Address at George Washington University Marking 10th Anniver-sary of Attempt on His Life (Mar. 28, 1991). Mr. Reagan also said that waiting periods toperform background checks are 'just plain common sense." Mr. Reagan on the Brady Bill,WASH. POST, Mar. 29, 1991, at A20 (reporting Reagan's unqualified endorsement of seven-day waiting period for handgun purchases). This may explain the popularity of that phraseamong members of Congress who supported the Brady bill. See infra note 112 (documentingappeals to "common sense" in Brady debate).

71. Support the Brady BilL' Congress Should Follow Reagan on Gun Control, SEAIxrr TmEs,Mar. 31, 1991, at A18 (noting that Reagan's reversal in position undoubtedly surprised gunenthusiasts because he had continued to oppose gun control for long period even after beingshot byJohn Hinckley). Reagan's steadfastness on the issue of gun control made him a heroamong gun lovers, as evidenced by the following tribute that appeared in a gun enthusiasts'magazine after the Hinckley attack: "Thank God for President Reagan, a man who, even afterbeing shot, realizes that more gun controls are not the solution to our crime problem....Here's a man of guts, common sense and vision. May he live to be 120." .JERvIs ANDERSON,GUNS IN AMERICAN LIa 7 (1984) (quoting from the gun magazine Pistolero).

72. See Edward Walsh, Clinton Charges Bush Uses Crime Issue to Divide, WASH. PosT, July 24,1992, at A16 (explaining that Willie Horton is convicted murderer who escaped from prisonin Massachusetts during prison furlough program). Horton later raped a woman. Id. TheRepublicans used Horton's story in repeated negative advertisements during the 1988 presi-dential campaign to portray the Democratic presidential candidate Michael Dukakis, then-governor of Massachusetts, as being weak on law enforcement issues. Howard Kurtz, PastBrings Perspective to Negative Ads, WASH. POST, July 28, 1992, at A8.

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be said that only "liberals" favored gun control. 73

The pro-Brady bill forces did not hesitate to capitalize on RonaldReagan's support, as well as on that of former Presidents Nixon,Carter, and Ford.74 It is astonishing, however, that Mr. Reagan'sopinion on the issue should carry so much weight. Mr. Reagan isnot an expert on gun control. He is not a criminologist or constitu-tional law scholar. He is simply a popular former President. It isdoubtful that he rigorously studied any of the literature on the sub-ject of gun control or the Second Amendment in reaching his con-clusion to support the Brady bill. With due respect to Mr. Reagan,his opinion on the bill should carry about as much weight with thepublic as a popular entertainer's endorsement of a consumer prod-uct. Appealing to his judgment as a basis for deciding the issue wasan improper appeal to authority.75

To further strengthen their shield against criticism that they aresoft on crime, Brady bill supporters made good use of the fact thatmost major national police organizations endorsed the legislation.7 6

This enabled them to project themselves as standing shoulder toshoulder with the nation's police officers in the war against violentstreet crime. 77 Appealing to the judgment of law enforcement as-sociations on the issue was not completely fallacious because policeofficers have substantial experience in dealing with guns and gun

73. See infra notes 92-98 and accompanying text (citing examples of characterization ofgun control proponents as liberals).

74. See 137 CONG. REC. H2847 (daily ed. May 8, 1991) (statement of Rep. Atkins) (an-nouncing that he is proud to support legislation that is also backed by former PresidentsRonald Reagan, Jimmy Carter, Gerald Ford, and Richard Nixon); id. at H2844 (statement ofRep. Roemer) (noting that Brady bill had support of former Presidents Reagan and Nixon).

75. An opponent of the bill sought to explain away Mr. Reagan's support as "an act oflove and loyalty" to his friends, Sarah and Jim Brady, which it may have been. IL at H2824(statement of Rep. Gekas).

76. Handgun Control, Inc. circulated a newsletter touting the support of the followingpolice organizations: Fraternal Order of Police, with 217,000 members; National Associationof Police Organizations, with 130,000 members; International Association of Chiefs of Police,with 15,000 members; National Sheriffs' Association, with 22,000 members; and the NationalOrganization of Black Law Enforcement Executives, with 2,300 members. HANDGUN CON-TROL, INC., POLICY LOBBY FOR NATIONAL WAITING PERIOD, JUST THE FAcrs ABOUT THE BRADYBILL.

77. See 137 CONG. REC. H2837 (daily ed. May 8, 1991) (statement of Rep. Hughes) ("Ihappen to be with police of this country and Sarah and Jim Brady."); id at H2837 (statementof Rep. Gephardt) ("I will vote for the Brady bill because it has the strong support of the menand women who wear the uniform, walk the beats, bust the pushers, and put their lives on theline every day."). Representative Hughes followed his effort to identify himself with the"good guys" by connecting opponents of the bill with the "bad guys." "Who is on the otherside of the issue?" he asked. "Make no mistake about it. The NRA is on the other side of theissue." Id. at H2861 (statement of Rep. Hughes). Jeremy Bentham labeled this type of argu-ment the fallacy of vituperative personalities. BEzrH.m, supra note 5, at 83-92. This fallacyconsists of arguing for the rejection of a measure based on the allegedly bad character ofthose who favor it. Id- at 83-92. The fallacy is one form of ad hominem. For a discussion of adhominem, see infra notes 82-116 and accompanying text.


violence. However, as American Civil Liberties Union AttorneyDavid B. Kopel noted, to the extent the Brady bill raises constitu-tional issues regarding the proper interpretation of the SecondAmendment, deference to police opinion is inappropriate. 78 Thepolice, he reminded, are not noted for their dedication to protectingindividual liberties. 79 On this point he is correct that unqualifieddeference to police organizations' judgment is unwarranted.

With Ronald Reagan, the police, and other stalwarts on theirside,80 the pro-Brady bill forces simply (if the pun can be forgiven)outgunned the NRA in the contest for popular support. Lacking theendorsements of presidents and major police organizations, Bradybill opponents were reduced to trumpeting such generic good willassociations as "we have NRA members that are policemen, minis-ters, doctors, lawyers, scout leaders, little league coaches[, and soon.]"

81

4. Ad hominem

Whatever either side lacked in positive emotional identificationsbetween issues and personalities was made up for with negative con-nections. A time-honored rule of effective persuasion is that it maybe more profitable to attack the arguer than it is to attack the argu-ment.8 2 This is the fallacy of argumentum ad hominem, or "argumentdirected against the man."83 Few fallacies are more potent or moreoften employed.

Ad hominem works because of the emotional transference that oc-curs from listeners' feelings about a speaker to their feelings about

78. Kopel, supra note 56, at S9048.79. Kopel, supra note 56, at S9048. Kopel explained his position as follows:The opinion of police chiefs is not the arbiter of our Constitutional rights. Somepolice executives criticize the exclusionary rule; they claim that a strong FourthAmendment causes crime. Some police executives criticize the Miranda decision, andclaim that a strong Fifth Amendment causes crime. Many police executives say that astrong Second Amendment causes crime. In every case the executives are wrong.

Id.80. The American Medical Association (AMA) also endorsed the Brady bill. See 137

CONG. REC. H2824 (daily ed. May 8, 1991) (statement of Rep. Hoagland) ("The Nation'sdoctors urge us to help them in a vital mission-saving lives. The AMA asks that we act swiftlyto put in place a measure to keep guns out of the hands of those who should not have them.").The AMA, though certainly a distinguished body, is a questionable source of authority regard-ing the wisdom of waiting periods and background checks, however.

81. Idl at H2830 (statement of Rep. Solomon).82. The classic tale, presumably apocryphal, involves an English banister who had ne-

glected to prepare for trial, counting instead on a solicitor to investigate and prepare the case.When the barrister arrived on the morning of trial, the solicitor handed him the trial brief.Surprised by its thinness, the barrister opened it and found only a note reading: "No case;abuse the plaintiff's attorney." Copi, supra note 5, at 60.

83. See Copi, supra note 5, at 54 (discussing and defining ad hominem fallacies).

[Vol. 42:53


his or her argument.8 4 If an audience has a negative opinion aboutthe speaker, that opinion is likely to carry over to the speaker's argu-ment. For example, if one wanted to rebut Senator Edward Ken-nedy's support for gun control with an ad hominem attack, theargument might be: "I wonder if Senator Kennedy took any timeout from his drinking and carousing to study this issue."85 By gen-erating negative emotions about the Senator, the speaker might alsoconvince the audience to discount the Senator's views concerninggun control. The fallacy is that however distasteful Senator Ken-nedy's personal character and lifestyle might be to some, these fac-tors are logically irrelevant to the soundness of his judgment aboutgun control.

Ad hominem comes in two basic forms.8 6 The first form, abusive adhominem, involves a direct attack on the speaker.8 7 The attack mayrelate to the speaker's character, judgment, intelligence, or even theperson's inability to dress properly.88 The hypothetical involvingSenator Kennedy is an example of abusive ad hominem. The secondform of the ad hominem fallacy is circumstantial ad hominem, which

84. See Copi, supra note 5, at 55 (analyzing effectiveness of ad hominem on audience).85. In fact, Senator Kennedy has frequently been the target ofjust this kind ofadhoninem

attack. For example, after Kennedy lambasted David Duke's candidacy for the governorshipof Louisiana, the former Grand Wizard of the Ku Klux Klan lashed back by saying, "I'd ratherbe an ex-Klansman than the hero of Chappaquiddick. I'm very proud that Teddy Kennedy isattacking me. It must mean that I'm doing something well." Ron Ridenhour, Duke Foes Join inUneasy Coalition, S.F. EXAMINER, Oct. 27, 1991, at A6, A7.

86. See DAMER, supra note 6, at 79-80 (discussing both types ofad hominemn arguments andproviding examples). Many other authors have analyzed ad hominem arguments and have oftenclassified the arguments in more than two categories. See BENTHAM, supra note 5, at 83-92(classifying six groups of ad hominem attacks); STUART CHASE, GUIDES TO STRAIGHT THINKING:WrrT THIRTEEN COMMON FALAcIEs 58-64 (1956) (identifying fallacies and discussing identifi-cation scheme); CoPi, supra note 5, at 54-57 (discussing irrelevance of ad hominem attacks torational decisionmaking); FEARNSIDE & HOLTHER, supra note 5, at 97-104 (analyzing four typesof ad hominem fallacies); HAMBUN, supra note 5, at 41-42 (giving historical overview of adhominem label).

87. DAMER, supra note 6, at 79.88. See FISCHER, supra note 7, at 291 (illustrating abusive ad hominem attack with example

of closing argument used by Abraham Lincoln to destroy his opponent's esteem). Lincoln'slaw partner, William H. Herndon, remembered the future President's argument in this way:

In a case where judge [Stephen T.] Logan-always earnest and grave-opposed him,Lincoln created no little merriment by his reference to Logan's style of dress. Hecarried the surprise in store for the latter, till he reached his turn before the jury.Addressing them, he said: "Gentlemen, you must be careful and not permit your-selves to be overcome by the eloquence of counsel for the defence. judge Logan, Iknow, is an effective lawyer. I have met him too often to doubt that; but shrewd andcareful though he be, still he is sometimes wrong. Since this trial has begun I havediscovered that, with all his caution and fastidiousness, he hasn't knowledge enoughto put his shirt on right." Logan turned red as crimson, but sure enough, Lincolnwas correct, for the former had donned a new shirt, and by mistake had drawn it overhis head with the pleated bosom behind. The general laugh which followed de-stroyed the effect of Logan's eloquence over the jury-the very point at which Lin-coln had aimed.

Id (quoting WILLIAM H. HERNDON, HERNDON'S LIFE OF LINcoLN 291 (Paul Angle ed., 1965)).


consists of disparaging a person's views based on some relationshipbetween those views and the person's special circumstances. 89 Bothvarieties of this fallacy were in plentiful supply during the Brady billdebate.9 0

The dominant theme of ad hominem attacks by the anti-gun controlmovement has been to paint supporters of gun control as soft oncrime and as being more concerned with controlling guns thancriminals. One extreme example of this during the Brady bill con-troversy was a song targeting gun control activists composed by theleaders of an organization called Jews for the Preservation of Fire-arms Ownership. 9l Sung to the tune of "America the Beautiful,"the song, called "Ode to Felons," included these lyrics: "We are thefriends of felons, we want felons to be free; To murder, rape and sellcocaine from L.A. to D.C."9 2

A less creative but equally mean-spirited way to attack advocatesof gun control was simply to invoke the dreaded "L" word.93 TheBrady bill debate was peppered with references to the "liberal polit-ical conspiracy,"9 4 "ultra-liberal newspapers and congressmen, 9 5

the "liberals' anti-gun propaganda" 98 and-employing the most dis-

89. See FISCHER, supra note 7, at 81 (furnishing example of circumstantial ad hominem fal-lacy wherein attorney's position on legal reform was attacked on basis of same person's occu-pation as attorney).

90. See, e.g., Mitchell Locin, Texas Gunfire Changes I Vote, CHr. TRIB., Oct. 18, 1991, at MI(quoting Representative Randy Cunningham in his abusive ad hominem attack on Representa-tiveJohn Bryant, claiming that because Bryant did not serve in military or fight in combat, heis not qualified to state that nobody needs assault weapons); Vivienne Walt, NRA WeaponAgainst Gun Ban Grows Bigger, NEWSDAY, Feb. 24, 1991, at 13 (questioning reasoning and mo-tives of representatives accepting donations from NRA by making circumstantial ad hominemattacks); John Wellings, Gun Control Won't Help, Hous. CHRON., Oct. 27, 1991, at B3 (makingcircumstantial ad hominem attack on Sarah Brady for supporting gun control because husbandwas shot).

91. See Gun Lobby Plays at New Level of Hardball, States News Service,June 7, 1991, availablein LEXIS, Nexis Library, Current File (reporting that Preservation of Firearms Ownershiporganization distributed literature on Capitol Hill sharply criticizing "pro-criminal" Bradybill).

92. Id. The Jews for the Preservation of Firearms Ownership also purchased an adver-tisement in a gun magazine in which the group called New York Representative Charles Schu-mer a "stupid Jew" for supporting the Brady bill. Stephanie Saul, Schumer Defended on GunStance, NEWSDAY, Apr. 30, 1991, at 15. The NRA disavowed any connection with the organiza-tion. Id.

93. Cf BENTHAM, supra note 5, at 92 (attributing ready willingness with which peopleresort to adhominem argumentation, of which calling someone "liberal" is example, to fact thatit requires "neither labor nor intellect").

94. See William D. Nveske, Letterline, USA TODAY, May 22, 1991, at 9A (reprinting letterto editor characterizing Brady bill as first step in "liberal conspiracy" to totally disarmpopulace).

95. See William A. Rossbach, Brady Gun Bill Passes in House, L.A. TIMES, May 15, 1991, atB6 (denouncing efforts of conservative newspapers and legislators to criticize and classifyBrady bill as part of liberal agenda).

96. See Robert Hohl, Times Takes a Poke at the National Rifle Association, WASH. TIMES, May13, 1991, at D2 (questioning objectivity of media in Brady bill debate).


paraging slur possible in the war of liberal versus conservative poli-tics-comparisons to Ted Kennedy.97

Some ad hominem arguments promoting this theme were moresubtle. In the House debate, one representative, without explana-tion or elaboration, obliquely commented, "It is ... interesting tonote that a large number of supporters of the Brady bill oppose theimposition of the death penalty and other 'get tough' measures withcriminals."9 8 Why was this "interesting"? For the same reason itwould be "curious." Used in this context, these terms are codewords of disparagement. The representative's statement was athinly veiled attempt to paint supporters of the Brady bill as liberalswho are soft on crime. 99

The campaign to brand all supporters of gun control as liberalsshares characteristics of both abusive and circumstantial adhominem. 100 It constitutes abusive ad hominem because in the wake ofthe 1988 Republican presidential campaign, being labeled a "lib-eral" had almost the same potency to malign as "commie" oncedid.101 It is also circumstantial ad hominem because it is calculated toeffect rejection of speakers' opinions based solely on their specialcircumstances, in this case, their political philosophies. Themessage is, "Well, what do you expect her to say? She's a liberal."The implication is that the speaker holds the opinion only because itis consistent with liberal political philosophy and not because shebelieves there are good reasons supporting it. To the extent thatbeing a liberal can be equated with being a Democrat, this is notentirely fallacious as applied to members of Congress, because rep-resentatives often do vote the party line.' 0 2 But in the context of the

97. See Saul, supra note 15, at 85 (describing NRA's use in negative campaign against guncontrol advocates of Senator Edward Kennedy's reputation as advocate for liberal causes).After Representative James Sensenbrenner, a Republican from Wisconsin, voted in favor ofthe Brady bill in the HouseJudiciary Committee, the NRA sent a letter to his constituents thatincluded the comment, "Ha! With support like that, you might as well have Ted Kennedyrepresenting you." Id

98. 137 CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep. Rohrabacher).99. Cf id at H2828 (statement of Rep. Inhofe) (pointing out in more direct attack on

Brady supporters that "if we look at the Members who are behind the Brady bill .... we findMembers who are opposed to the death penalty, Members opposed to the Violent Crime Act,Members opposed in general to punishment for a deterrent to crime").

100. See supra notes 86-92 and accompanying text (defining types of ad hominem fallacies).101. "Commies" have not been completely forgotten. See Wally's Right About Brady Bill,

ARK. DEMOCRAT, June 10, 1991, at 7B (stating in letter to editor that "[t]hose commies thatinstigated high crime by bringing in probation, plea bargaining, early releases and weekendpasses are now trying to disarm the law-abiding citizens at a time when they can't even controlthe criminals").

102. See generally ROGER H. DAvIDsON & WALTERJ. OLLESEK, CONGRESS AND ITS MEMBERS346 (3d ed. 1990) (noting high incidence of party unity votes in Congress). The authors statethat between 1970 and 1988, "the average legislator vote[d] with his or her party two-thirdsto four-fifths of the time." Id.

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overall debate, it is certainly a fallacy to imply that a person supportsgun control only because he or she is a "liberal."103

Another ad hominem theme of the anti-Brady bill forces wasdictatorialism. Brady bill supporters were cast as "anti-SecondAmendment"10 4 and "power-hungry"10 5 individuals for their per-ceived indifference to the Second Amendment right to keep andbear arms. A popular gun magazine published a list of "America'sTop Ten, 'Gun Grabbers,'" which charged Brady-sponsor EdwardFeighan, a Democratic representative from Ohio, with responsibilityfor "more legislative efforts to take away your rights than nearlyanyone else in Congress."' 1 6 The magazine leveled a similar chargeagainst Ohio Senator Howard Metzenbaum, stating that he "can becounted on to try to destroy as many of your Second Amendmentrights as he possibly can."'10 7

At its lowest point, the debate degenerated into ugly name-call-ing. The anti-Brady bill side enhanced the nomenclature of guncontrol with such affronts as "bullet-heads,"' 08 "gun-phobes,"' 10 9

"stupid Jew,"" 0 and "lily-livered bleeding hearts." 11' Brady billsupporters were somewhat more subtle and restrained in their adhominem attacks. Rather than come right out and call their oppo-nents idiots, the bill's supporters repeatedly extolled the "commonsense" of the legislation." 2 The implicit message was that oppo-

103. See Povich, supra note 55, at I (reporting that in final House of Representatives voteon Brady bill, 60 Republican representatives who usually are considered "conservatives" casttheir support for gun control).

104. Alan M. Gottlieb, Brady Bill Assaults Our Rights, USA TODAY, May 7, 1991, at 10A(enumerating criticisms of Brady bill supporters).

105. Id- (characterizing Brady bill as attempt by liberal politicians to encroach on citizens'rights).

106. Larry Pratt, America's Top Ten "Gun Grabbers", GUNS AND AMmo, July 1991, at 97 (list-ing names and activities of prominent gun control activists).

107. Idl at 25.108. Gunningfor Control, WASH. TIMES, Apr. 29, 1991, at G2 (describing Brady bill as attack

on personal liberty).109. Idl (referring to Brady bill supporters). The Washington Times denounced the Brady

bill as doing "absolutely nothing to curb violent crime and everything to harass and hamperlaw-abiding citizens." l

110. See supra note 92 (discussing verbal attack on New York Representative CharlesSchumer).

111. Gun Control Bill Is Condemned, ARK. DEMOCRAT, June 6, 1991, at 1 B (proferring opin-ion in letter to editor that gun control will lead to erosion of constitutional rights).

112. 137 CONG. REc. 58938 (daily ed. June 27, 1991) (statement of Sen. Simon) ("Wehave to have some common sense."); 137 CONG. REC. H2846 (daily ed. May 8, 1991) (state-ment of Rep. Panetta) ("These facts make obvious that waiting periods and backgroundchecks make sense-perfect, clear, logical sense."); id, at H2844 (statement of Rep. Roemer)("[The Brady bill] makes sense."); id. at H2836 (statement of Rep. Roukema) ("[Tlhe Bradybill is a matter of simple common sense."); id at H2832 (statement ofRep. Schumer) ("(TheBrady bill is the very model of common sense."); id. at H2824 (statement of Rep. Levine)("[W]hat we are about to do is put some common sense and reason into a policy that isnonexistent."); Brady Bill Will Save Many Lives, USA TODAY, May 7, 1991, (Editorial), at IOA


nents of the legislation lacked common sense. Rather than directlyaccuse House members who supported a weaker, NRA-backed sub-stitute bill 13 of being liars and hoodwinkers, representativesattacked the substitute bill as a "blatant ruse,"' 1

4 a "sham,"' 15 and a"smokescreen." 116

All of the fallacies discussed to this point encourage the listener tosubstitute emotion for reason as the basis for deciding an issue.The rhetorician attempts to manipulate us to form opinions about aproposal based on fear or pity, 117 or because it is the popular orpatriotic thing to do," 8 or because we like and respect some otherperson who has expressed an opinion about the proposal and whohas been presented to us as an authority on the subject, 119 or be-cause we have negative feelings about a person who supports or op-poses the proposal.' 20 But these appeals divert us from focusing onthe wisdom of the proposal, which is the only real issue. Whether aproposal is wise can only be determined after a reasoned analysis of

("If Congress can muster a little courage and common sense, it can save hundreds of lives thatotherwise will be lost to gunfire."); Charles Schumer, The Brady Bill's Right on Target, NEWSDAY,May 6, 1991, at 36 ("It seems that such a simple, common sense proposal should be easilyapproved.").

113. H.R. 1412, 102d Cong., 1st Sess. (1991), 137 CONG. REC. H2855-56 (daily ed. May 8,1991). This was the so-called Staggers bill, named after its sponsor, Representative HarleyStaggers of West Virginia. The bill called for the creation of an instant point of sale checksystem that would immediately identify felons who attempted to purchase handguns. Id. Aneffective instantaneous screening system would eliminate the need for a waiting period, butunfortunately, the Office of Technology Assessment estimated that development of such asystem would require five to ten years and hundreds of millions of dollars. 137 CONG. REC.58935 (daily ed. June 27, 1991) (statement of Sen. Metzenbaum). As a result, the Houserejected the Staggers proposal. 137 CONG. REC. H2876 (daily ed. May 8, 1991). The Senaterejected a similar proposal sponsored by Senator Ted Stevens of Alaska. 137 CONG. REC.S8946 (daily ed. June 27, 1991). The version of the Brady bill ultimately adopted by theSenate and subsequently by House and Senate conferees approved both a waiting period andthe establishment of an instant check system. See supra note 3 (discussing history of Bradybill). Under the Brady bill, the federally mandated waiting period will be phased out after theinstant check system is certified as operational. H.R. 7, 102d Cong., 1st Sess. (1991); S. 1241,102d Cong., 1st Sess. §§ 2701-2703 (1991).

114. 137 CONG. REC. H2837 (daily ed. May 8, 1991) (statement of Rep. Roukema) (ques-tioning feasibility of Staggers bill). Representative Roukema, a supporter of the Brady bill,also referred to the Staggers bill as "an obvious ploy to provide political cover for Memberswho want to look as though they are voting for handgun control but are actually killing it foryears to come." Id.

115. See id, at H2841 (statement of Rep. Sensenbrenner) ("The Staggers bill is a sham. Itis so riddled with exemptions that it really is not effective.").

116. See id. at H2847 (statement of Rep. Panetta) (questioning whether handgun and mur-der statistics are needed to demonstrate superiority of Brady bill over Staggers bill).

117. See FEARNSIDE & HOLTHER, supra note 5, at 128-29 (discussing how fear of one alter-native can lead to support for another).

118. See FEARNSIDE & HOLTHER, supra note 5, at 92 (noting fallacies contained in appealsto "get on the bandwagon").

119. See FEARNSIDE & HOLTHER, supra note 5, at 84 (discussing effect on reasoning processof appeals by reliable or knowledgeable personalities).

120. See FEARNSIDE & HOLTHER, supra note 5, at 92 (asserting that association of idea withunpopular figure results in rejection of idea).


relevant factors is undertaken, such as whether the proposal's goalwill be beneficial to society, whether it will be possible to implementas a practical and legal matter, whether, if enacted, it will achieve itsintended goal, and what the cost of implementation will be.

The cost of implementation includes not only the economic butalso the human cost. In considering this factor, it is important todistinguish illicit appeals to emotion from legitimate appeals to hu-manistic values and moral judgments,12 1 because the latter are vitalcomponents of the "logic" of public decisionmaking. Most law re-form proposals will have consequences that affect the lives of realpeople. Decisions as to which consequences society wants to en-courage, and which it prefers to avoid, necessarily depend on valuepreferences.

Thus, belief in the sanctity of human life and compassion for vic-tims of crime make it proper to consider whether a waiting periodfor handguns will save more innocent lives than it will cost. Simi-larly, the interest in individual freedom to act makes it appropriateto consider whether a waiting period is an onerous burden on thatfreedom or only a minor inconvenience. In these examples, com-passion and liberty are appealed to not as disconnected emotionalsymbols to incite adoption or rejection of the Brady bill, but as partof a reasoned inquiry concerning the consequences of the legisla-tion. Will the legislation promote or inhibit desirable or undesir-able values? In contrast, the fallacies discussed in this section arenot designed to facilitate cognitive consideration of values. Insteadthey are intended to stimulate an affective state of consciousnessthat will preempt cognitive consideration of the issues.

B. Fallacies of Diversion

The fallacies of emotion discussed in the preceding section arediversionary in that they are intended to shift attention away fromhonest and valid reasoning about the merits of a proposal. How-ever, because these fallacies all accomplish this by the same means,by appeals to raw emotion, they warranted treatment as a separatecategory. Emotion is the strongest bond tying them together.

The fallacies evaluated in this section are less well-connected.They are diversionary, but unlike the fallacies of emotion, they donot achieve diversion by appealing to some more powerful force. Inother words, they do not operate by forsaking reason in favor of

121. See DAMER, supra note 6, at 89 (making point that appeal to pity, which would nor-mally be fallacious, would not be fallacious if purpose was to draw attention to moralprinciple).

[Vol. 4 :53


some other basis for making a decision. Instead, the fallacies in thissection operate by distorting the reasoning process in ways intendedto make the audience lose track of or ignore the real point.' 22 Thisis accomplished through overstatement and understatement, bymaking irrelevant connections between premises and conclusions,and by drawing irrelevant analogies.' 23

1. Hyperbole

One of the most elementary fallacies of diversion is hyperbole.Hyperbole is an exaggeration for rhetorical effect.' 24 To the extenthyperbole is used only to add ornament or flourish to speech, it isnot objectionable and may even contribute positively to discourse.The world would be a drab place if we demanded that all discussionof public issues be couched in dispassionate and colorless terms.Imagery, euphony, adornment, and metaphor breathe life into lan-guage. When the issue is vital and the consequences of a decisionare great, it may be necessary to speak bluntly and even stridently.In such cases, false euphemism would only detract from clearthinking.'

25

Nevertheless, audiences need to be wary of sophists who use hy-perbole to overstate the clarity and certainty of their positions. Byrepresenting a matter as indisputable, a speaker may convince anaudience that it is not necessary to think about a problem or mayforestall disagreement from those who do think about it.1 26 Lawyersand judges are experts at accomplishing this by using a single wordor phrase, such as "clearly," "plainly," "obviously," "absolutely,""completely," or "it is axiomatic."' 127

122. See FEARNSIDE & HOLTHER, supra note 5, at 121 (examining use of diversionaryfallacies).

123. See id. (explaining diversionary methods and providing examples).124. WEBSTER'S THIRD NEW INTERNATIONAL DICTIoNARY 1112 (3d ed. 1981).125. See FEARNSIDE & HOLTHER, supra note 5, at 80 (advocating frankness as means of

serving truth).126. See FEARNSIDE & HOLTHER, supra note 5, at 101 (referring to fallacy of "Forestalling

Disagreement" as means to prevent debate).127. In a passage directed at historians but applicable to everyone, David Fischer ex-

plained why all such assurances should be evaluated with skepticism:Historians have been known to write "always" for "sometimes," and "sometimes"for "occasionally," and "occasionally" for "rarely," and "rarely," for "once."... "[C]ertainly" sometimes means "probably," and "probably" means "possibly,"and "possibly" means "conceivably." Similarly the phrase "It needs no comment"should sometimes be translated as "I do not know what comment it needs." When ahistorian writes, "It is unknown," he might mean "It is unknown to me," or "I don'tknow," or even "I won't tell." The expression "in fact" sometimes means merely "inmy opinion." And the phrases "doubtless" or "undoubtedly," or "beyond a shadowof a doubt" sometimes really should be read, "An element of doubt exists which I,the author, shall disregard."

FISCHER, supra note 7, at 270-71.

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One of the most prominent issues in the Brady bill debate waswhether the legislation would accomplish what it was intended toaccomplish; that is, whether waiting periods and background checkswould really prevent criminals from obtaining guns. Opponents ofthe measure asserted that the legislation would not do this andsought to bury any doubts about the question under an avalanche ofhyperbole. They made bold assertions that the law "would have ab-solutely no effect upon criminals," 1 28 "will do absolutely nothing tocurb violent crime," 129 "would do nothing to prevent criminalsfrom obtaining guns,"' 30 "will not prevent a single criminal whowants a handgun from getting one,"' 31 and "would do nothing tocurb the incidence of crime and violence on America's streets. ' 132

"Predicting," some wise person once said, "is a risky venture, espe-cially with regard to the future." The truth is that no one knowswhat effect the Brady bill will have on gun violence. Each of theclaims listed above is fallacious because it represents a matter as cer-tain when in fact the matter is largely speculative.' 33 This observa-tion would be true even if the predictions proved to be accurate. In

128. Rossbach, supra note 95, at B6 (advocating presidential veto of Brady bill).129. Gunning For Control, supra note 108, at G2.130. 137 CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep. Rohrabacher).131. Id. at H2863 (statement of Rep. Hancock).132. 137 CONG. REC. S8936 (daily ed.June 27, 1991) (statement of Sen. Symms). Strong

hyperbole of this type also commits the fallacy of ipse dixit, which translates to "[he] himselfsaid it." BLACK's LAW DICTIONARY 743 (5th ed. 1979). An ipse dixit fallacy i3 an assertion madewith no proof or authority to support it. These fallacies are difficult to address effectively inargument because while they can be disputed, they are difficult to refute, particularly if theyrelate to evaluative matters.

133. For example, proponents of the Brady bill countered the anti-Brady bill hyperbolicarguments exemplified in the text accompanying notes 128-32, supra, by promulgating theirown hyperbole, claiming that the law would save hundreds and even thousands of lives. See137 CONG. REC. H2834 (daily ed. May 8, 1991) (statement of Rep. Sangmeister) ("The answeris we save lives-potentially, thousands of lives."); Brady Bill Will Save Many Lives, supra note112, at 10A ("If Congress can muster a little courage and common sense, it can save hundredsof lives that otherwise would be lost to gunfire.").

Related to this kind of hyperbole is a fallacy that Madsen Pirie calls "Every SchoolboyKnows." PIRIE, supra note 5, at 62-65. This fallacy is committed when the speaker overstatesthe obviousness of a particular point to shame the opposition into accepting it. See id. at 62(suggesting that labeling concept as universally accepted results in acceptance without de-bate). For example, if a speaker stated, "Even a child knows that criminals do not buy theirguns from gun shops," the opponent might be reluctant to disagree out of the shame and fearof appearing to know less than a mere child.

Brady bill partisans used such fallacies in subtle and effective ways by repeatedly hammer-ing the message that the Brady bill was a matter of plain common sense. See supra note 112(documenting use of appeal to common sense as rallying cry by Brady bill supporters). Oppo-nents could voice disagreement only at the risk of appearing to lack common sense. A moreextreme example of the fallacy occurred when a pro-Brady bill representative challenged hiscolleagues with the question, "Who in the world, in this body or in this country, can arguewith the fact that we should have a waiting period of 7 days, to find out if someone has been ina mental institution, or if someone has a criminal record, before we sell them a handgun?"137 CONG. REC. H2840 (daily ed. May 8, 1991) (statement of Rep. Derrick). The implied,unstated answer to the question was "only a fool."


other words, the fact that a speculative prediction turns out to betrue does not change the fallacious nature of the prediction at thetime it was made.

The converse of using hyperbole to overstate a position is em-ploying deprecatory hyperbole to understate it. As overstatement isused to bolster a speaker's position, deprecatory hyperbole is usedto minimize the weight of competing evidence or arguments. Dep-recatory hyperbole consists of such words as "merely," "simply," or''only."

The most notable illustration of this fallacy in the Brady bill de-bate involved the same issue discussed above: whether the lawwould prevent convicted felons from obtaining guns. The Brady billwould apply only to handgun purchases from licensed firearms deal-ers.134 Thus, the evidence most relevant to predicting the impact ofthe law comes from studies showing the percentage of convictedfelons who obtain handguns from conventional retail outlets.Figures cited in the gun control debate on this point ranged fromtwelve to thirty percent. 35 Brady bill backers viewed these statisticsas providing support for the legislation. 36 Opponents of the bill,however, minimized the significance of the numbers by framingthem in deprecatory hyperbole. A Senator argued that of all theguns acquired by criminals, "only about 12 percent... came fromstores."13 7 Similarly, a newspaper editorial stated that "only one-sixth [of convicted felons] obtained their weapons in a retail transac-tion." 138 And a criminologist emphasized that a Florida studyshowed "only thirty percent of handgun murderers and assaultersreported acquiring their guns from dealers."' 39

134. Both the House and Senate versions of the bill applied only to licensed importers,manufacturers, and dealers of firearms. H.R. 7, 102d Cong., 1st Sess. § 2(a)(s)(1) (1991); S.1241, 102d Cong., Ist Sess. § 2701(a)(u)(1) (1991).

135. See, e.g., JAMES D. WRIGHT & PETER H. Rossi, ARMED AND DANGEROUS, A SURVEY OFFELONS AND THEIR FIREARMS 4-7 (1986) (exploring relationship between convicted felons, useof firearms, and incidence of violent crime by examining survey data collected from nearly2,000 convicted felons incarcerated in state prisons around country). Responding to a ques-tion in the Wright/Rossi survey as to how they obtained handguns, only 16% of convictedfelons who acknowledged having owned a handgun said they purchased their most recenthandgun from a conventional retail source. WRIGHT & Rossl, supra, at 185.

136. See 137 CONG. REC. H2846 (daily ed. May 8, 1991) (statement of Rep. Panetta) ("Ifeel it is highly important to point out that statistics have shown that around one in sixcriminals who have committed crimes with handguns bought their weapons from a licenseddealer."); Norm Brewer, Gun Law Debate Hangs on Stories, Not on Statistics, USA TODAY, Apr. 17,1991, at 1 (quoting spokesperson for Handgun Control, Inc. as stating that avoidance ofhandgun sales to one in six convicted felons is "very important").

137. 137 CONG. REC. S8937 (daily ed.June 27, 1991) (statement of Sen. Gramm) (empha-sis added).

138. Gunning For Control, supra note 108, at G2 (emphasis added) (citing United StatesDepartment ofJustice study of 1800 felons).

139. Gary Kleck, Policy Lessons from the Recent Gun Control Research, 49 Lw & CONTEMP.


It is entirely possible, of course, that these were not intentionalattempts to fallaciously depreciate the statistics, but instead werehonest value judgments regarding the benefits of the Brady bill asmeasured against its costs. In either case, the effect was the same.Use of the word "only" worked to understate the magnitude of thenumbers. When the percentages are converted to absolute num-bers, they seem to favor the pro-Brady bill side. Accepting that"only" twelve to thirty percent of convicted felons purchase theirhandguns over the counter means that from 12,000 to 30,000 ofevery 100,000 handguns acquired by convicted felons would be cov-ered by the Brady bill. 140 Regardless of the speakers' intent, theattempt to minimize these numbers by use of the word "only" con-stituted fallacious deprecatory hyperbole.

2. The slippery slope

A specialized application of hyperbole with great relevance to guncontrol consists of attacking a proposal by raising the spectre of ter-rible results that will follow if the proposal is adopted. In classicalterminology, this is the "slippery slope" argument."" In this typeof argument, any restriction, no matter how harmless in itself, is

PROBS. 35, 55 (1986). Professor Kleck discussed gun policy generally in his article and not theBrady bill specifically. In the article, he employed deprecatory hyperbole to minimize otherstatistics relevant to gun control. For example, he recited that "in 1979 only about nine per-cent of rape offenders were armed with a gun" and stated that "[t]he presence of a gun in eventhese few rapes was often incidental and not necessary in the commission of the crime .... Id.at 39 (emphasis added). In 1979, there were 76,390 reported rapes. BUaU OF THE CENSUS,U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 173 (1990). If weaccept Kleck's percentage estimate as correct, that means 6875 rapists were armed with gunsin 1979. It is questionable whether the use of modifiers such as "only" or "these few rapes" isappropriate in describing this figure.

Some Brady antagonists characterized the statistics regarding over-the-counter handgunspurchased by convicted felons in terms that could be regarded as transgressing beyond hyper-bole to outright falsehood. See 137 CONG. REC. S8933 (daily ed.June 27, 1991) (statement ofSen. Stevens) (insisting that "[v]irtually no felon" buys firearms from retail stores); 137 CONG.REC. H2874 (daily ed. May 8, 1991) (statement of Rep. Geren) (asserting that Wright andRossi study "prove[s] that felons simply do not get guns from legitimate sources"); id. atH2863 (statement of Rep. Hancock) (arguing that criminals "almost always" obtain theirweapons by means 6ther than purchases from retail dealers).

Brady defenders directed their deprecatory hyperbole against the waiting period, describ-ing it as "only" a "minor" or "mere" inconvenience. See id. at H2851 (statement of Rep.Collins) ("What is wrong with this country that we place a mere 7-day wait for a weapon abovethe lives of our citizens?"); id. at H2845 (statement of Rep. Downey) ("[The waiting period]asks only that [gun purchasers] endure a minor inconvenience for the sake of saving lives.").

140. Cf 137 CONG. REC. H2850 (daily ed. May 8, 1991) (statement of Rep. Ackerman)(citing Office of Technology Assessment (OTA) study assessing feasibility of instant back-ground checks before gun sales that estimates that convicted criminals purchase at least50,000 firearms each year from gun stores).

141. See Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361, 361-62 (1985) (definingslippery slope as argumentative claim "that a particular act, seemingly innocuous when takenin isolation, may yet lead to a future host of similar but increasingly pernicious events").


subject to being assailed as "[t]he camel's nose ... in the tent."' 142

Because the strategy has nothing to do with the reasonableness of aparticular gun control measure under consideration, it is alwaysavailable.

So it was in the contest over the Brady bill. In the end, the crux ofthe dispute over the legislation was the provision establishing awaiting period to purchase a handgun.' 43 While some Brady billopponents attacked waiting periods as onerous burdens on law-abiding gun purchasers, 144 they did not succeed in generating muchpublic outrage in this regard. A 1991 Gallup poll showed thateighty-seven percent of the American people favored a nationalwaiting period for handgun purchases.' 45

Perhaps in recognition of this popular support for waiting peri-ods, many Brady bill adversaries resorted to the slippery slope strat-egy. Under this approach, waiting periods were no longer the issue.Instead, members of Congress were told that they were voting on"just the beginning of a flood of restrictions,"' 146 "the first step to-ward eliminating our second amendment rights,"' 47 "the first stepin the total disarmament of the American populace,"'148 and "theugly foot in the door."'149 These slippery slope arguments divertedthe focus of the debate away from the merits of waiting periods bydrawing noisy attention to other, more severe restrictions that werenot actually at issue.

Was this fallacious? The consequences of a proposal are certainlyrelevant to deciding whether to adopt it. One potential conse-quence of imposing a reasonable restriction on a constitutional rightis that it may represent the proverbial "first step" toward the next

142. lId at 361 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations,413 U.S. 376, 402 (1973) (Stewart,J., dissenting)).

143. See Povich, supra note 55, at 1 (describing NRA's eleventh hour attempt to avoidfederally mandated waiting period for handguns by throwing its support behind computerizedcheck system contained in Staggers bill to perform instantaneous background checks onhandgun purchasers); see also supra note 113 (explaining provisions of Staggers bill).

144. See 137 CONG. REC. S8940 (daily ed. June 27, 1991) (statement of Sen. Hatch) ("Ihope most of us will stand up and vote for our right to keep and bear arms and for not havingthese onerous provisions.").

145. See Alex Prud'homme, A Blow to the N.R.A.; The House Takes an Overdue Stand for GunControl, TIME, May 20, 1991, at 26 (citing increasing support for gun control legislation).

146. 137 CONG. REC. S8934 (daily ed. June 27, 1991) (statement of Sen. Stevens).147. Id at S8937 (statement of Sen. Murkowski) (arguing against passage of Brady bill).148. Nveske, supra note 94, at 9A (printing letter to editor remarking that "[gluns made us

free and guns will keep us free").149. Isikof, supra note 65, at A12 (quoting NRA member); see also Gun Down the Brady Bill,

WASH. TIMES, Apr. 10, 1991, at G2 ("Some analysts say the bill is a sneaky little effort to getcomplete control of handguns."); Saul, supra note 15, at 19 (quoting aide to RepresentativeHarley Staggers as stating, "The Brady bill is the first step in whittling away... [the right tobear arms].").

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restriction, which may be an unreasonable one. However, this con-cern is valid only if relevant empirical facts establish some real likeli-hood that the next step will in fact be taken.' 50 To the extent anargument raises exaggerated fears of an uncontrolled tumble downthe slippery slope, with no evidence realistically supporting thosefears, it is fallacious. It crosses the line from a legitimate concernabout a proposal's consequences to something that has been re-ferred to as the fallacy of the "unnecessary parade of horribles."' 5 '

The question of where to draw the line on the slippery slope is aproblem in virtually all decisionmaking.' 52 Usually, there is no clearpoint demarcating where the line should be drawn. Nevertheless,public decisionmakers must draw lines somewhere, even if the linesare arbitrary, or they abdicate their decisionmaking responsibility.When individual rights are implicated, line placement is determinedby balancing the rights of individuals against the interests of thecommunity. No right emerges from this process absolute.

Nor should it. There is no right to disseminate child pornogra-phy, to yell "Fire!" in a crowded theater, or to libel a person, eventhough the First Amendment provides that "no law" shall be madeabridging free speech.' 53 Similarly, while we enjoy complete free-dom of belief with regard to religious practices, the First Amend-ment does not always protect the right to act on those beliefs.' 5 4

The Fourth Amendment is subject to an interpretation that allsearches require warrants issued pursuant to probable cause, butthe Supreme Court continues to expand the situations in which war-rantless searches are permitted.' 5 5 And the Sixth Amendment pro-

150. See Schauer, supra note 141, at 381 (discussing proper context for examining slipperyslope arguments).

151. SCHLAG & SKOVER, supra note 22, at 31-32 (referring to rhetorical technique of sug-gesting dire consequences that are neither relevant nor likely to occur). Commentators havealso termed this approach "The Wicked Alternative." FEARNSIDE & HOLImER, supra note 5, at128-29.

152. See Irwin v. Gavit, 268 U.S. 161, 168 (1925) (Holmes, J.) (opining that "where todraw the line... is the question in pretty much everything worth arguing in the law").

153. See New York v. Ferber, 458 U.S. 747, 756-64 (1982) (denying First Amendmentprotection for child pornography); New York Times v. Sullivan, 376 U.S. 254, 279-83 (1964)(establishing First Amendment standards for libel actions against public officials); Schenk v.United States, 249 U.S. 47, 52 (1919) (Holmes, J.) (discussing limitations on First Amend-ment freedoms).

154. See Reynolds v. United States, 98 U.S. 145, 166 (1878) ("Laws are made for the gov-ernment of actions and while they cannot interfere with mere religious belief and opinions,they may with practices."). The Court upheld an Act of Congress prohibiting bigamy in theterritory of Utah. Id.

155. See, e.g., Colorado v. Bertine, 479 U.S. 367, 369 (1987) (approving warrantless searchof suspect's backpack found in vehicle as lawful inventory search); United States v. Ross, 456U.S. 798, 823-25 (1982) (approving warrantless searches of containers in automobiles);United States v. Robinson, 414 U.S. 218, 236 (1973) (approving full body search withoutsearch warrant as lawful search incident to custodial arrest); Terry v. Ohio, 392 U.S. 1, 27


vides for the assistance of counsel at trial, but criminal defendantsare not entitled to have the state pay for the counsel of their choicein defense.' 5 6 The list could go on.

Most gun owners probably would agree with these restrictions onindividual liberties and with the general principle that individualrights must yield at some point to the interests of the community.Why is it, then, that proposed restrictions on guns are invariablymet with the argument: "If we let them do x today, they'll be com-ing to take away our hunting rifles tomorrow?" Why are restrictionson the Second Amendment viewed as different, as somehow morediabolical and treacherous than restrictions on other rights? Isthere an empirical reality to the fear that a waiting period topurchase a handgun is really just the first step toward the oblitera-tion of the Second Amendment?

Although gun control advocates are reluctant to admit it, the evi-dence suggests that gun aficionados have some cause to be nervousabout gun control measures like the Brady bill. To a large extent,passing the Brady bill, as even some of its proponents conceded,was more a symbolic victory over the NRA than the implementationof an effective means of keeping criminals from getting guns. 157

And while many supporters of the measure took pains to pledgetheir allegiance to the right to bear arms,' 58 others candidly sug-gested that the Brady bill was, literally, the "first step" toward morestringent controls on gun ownership. I59

(1968) (approving warrantless body frisks based on reasonable suspicion that suspect isarmed and dangerous).

156. Faretta v. California, 422 U.S. 806, 810 n.5 (1975) (discussing denial of defendant'smotion for appointment of counsel from outside public defender's office).

157. See, e.g., 137 CONG. REC. H2824 (daily ed. May 8, 1991) (statement of Rep. Traficant).Representative Traficant, a pro-Brady bill partisan, stated that:

Mr. Speaker, neither the Brady bill, nor the substitute, will have much impact oncrime in America. My colleagues know it, and I know it. Today's debate is not aboutgun laws or waiting periods. Today's debate is: Who in America will write the futuregun laws: the U.S. Congress or the National Rifle Association?

158. See, e.g., id. at H2843 (statement of Rep. Valentine) ("I am a gun owner and collector.I have been a hunter. I may even be what some people refer to as a 'gun nut.' I firmly supportthe right of law-abiding citizens to own and use firearms for lawful purposes."); id. (statementof Rep. Carper) ("I rise in strong support of my right and privilege to keep and bear arms. Ihunted in northern Indiana as a young boy, and I hope someday my children have that sameright."); id. at H2841 (statement of Rep. Andrews) ("I have always opposed gun control [ingeneral]. As a prosecutor in Houston, as an avid hunter, I have always felt that gun controllaws tend to restrict and hurt lawful gun owners, as opposed to criminals.").

159. Perhaps the clearest statement to this effect came from Pete Shields, chairman emeri-tus of Handgun Control, Inc., who made the following remarks in an interview:

We're going to have to take one step at a time, and the first step is necessarily-giventhe political realities-going to be very modest .... So then we'll have to startworking again to strengthen that law, and then again to strengthen the next law, and

88 THE AMERICAN UNIVERsrrY LAW REvIEw [Vol. 42:53

There is no doubt that the agenda of many Brady bill proponentsencompasses much more than the adoption of waiting periods andbackground checks. Many Brady bill supporters want to prohibitprivate possession of handguns altogether. 160 This is what differen-tiates the Second Amendment slippery slope argument from mostother arguments. Persons who believe in a civil remedy for libel arenot ultimately looking to abolish newspapers. People who opposedpolygamy in the 19th century did not want to outlaw the Mormonchurch. Most people who advocate wider search and seizure author-ity for the police do not want to do away with the Fourth Amend-ment. But many of those who support waiting periods andbackground checks for handgun purchases do want to completelyban handguns.

That the prohibition of handguns is the goal of many gun controladvocates gives some credence to the slippery slope arguments ad-vanced against the Brady bill, but not enough to make them non-fallacious. Despite the yearnings of many champions of gun control,guns are so deeply entrenched in this country's history and culturethat there is virtually no chance they ever will be banned. Guns areinextricably identified with the frontier spirit that Americans ideal-ize. 161 Even peaceful people idolize celluloid killers like Stallone,Eastwood, Gibson, and, more recently, Seagal and Van Damme.The very fact that the notion of having to wait a few days to buy a

maybe again and again. Our ultimate goal-total control of handguns in the UnitedStates-is going to take time.

Pratt, supra note 106, at 24. Members of Congress echoed Mr. Shields' sentiment. See, e.g.,137 CONG. REc. H2851 (daily ed. May 8, 1991) (statement of Rep. Stokes) (affirming also thatBrady bill "is one step in the right direction"); id. at H2846 (statement of Rep. Serrano)("mhe Brady bill is but a first step in our Nation's journey toward a society free of handgunviolence."); i at H2841 (statement of Rep. Hayes) (stating that bill "is one step in the rightdirection"); id. at H2836 (statement of Rep. Mazzoli) (asserting that Brady bill "is one step inthat direction").

160. For example, the National Coalition to Ban Handguns advocates a total ban on hand-guns. See James B.Jacobs, Exceptions to a General Prohibition on Handgun Possession: Do They Swal-low Up the Rule, 49 LAw & CoNTEMp. PROBS. 5, 5 nA (1986) (quoting from National Coalitionto Ban Handguns pamphlet that supports banning of manufacture, sale, and private posses-sion of handguns). One writer asserts that the abolition of handguns is also the true agendaof Handgun Control, Inc. See Kopel, supra note 56, at S9054 (noting that "Handgun Control,Inc.'s former chairman has stated that he favors intermediate control as a waystation to near-total handgun prohibition").

161. See FRANKLIN E. ZIMRING & GORDON HAWKINS, THE CITIZEN's GUIDE TO GUN CON-TROL 70 (1987) (discussing prevalence of guns in American society). Zimring and Hawkinsnote that historian Richard Hofstadter attributes the American identification of guns with thefrontier as a nostalgic reference back to an era of less complexity and more rural existence.lad Hofstadter notes "lilt is very easy in interpreting American history to give the credit andthe blame for almost everything to the frontier, and certainly this temptation is particularlystrong where guns are concerned." Id. Nevertheless, he adds, "when the frontier and itsramifications are given their due, they fall far short of explaining the persistence of the Ameri-can gun culture." Id


handgun generated such intense controversy is itself a testamentthat we are nowhere near the brink of a free-fall toward stringentgun restrictions. While the extreme views of many gun control sup-porters make the slippery slope argument understandable, asser-tions that the Brady bill is "the first step in the total disarmament ofthe American populace"1 62 remain hyperbolic exaggerations.

3. The straw man and the red herring

Two related fallacies of diversion that were well utilized duringthe Brady bill controversy are the fallacies of the straw man and thered herring. The straw man fallacy involves refuting an opponent'sposition by mischaracterizing it. The argument that is then met isnot the real argument at all but only a "straw man" that can be eas-ily knocked down. 163 One way to accomplish this is by exaggeratingthe true argument to absurd lengths. For example, in the Brady billdebate, a House member opposed to the measure mounted a pas-sionate argument against the idea that "disarming everyone makespeople equal in strength."'1 The flaw in this argument is that sup-porters of the Brady legislation were not arguing in favor of dis-armament, but only in favor of waiting periods and backgroundchecks for handgun purchases. Either unwilling or unable to dealwith these narrow issues on their merits, the representative chose tobuild a more easily assailable straw man and knock it down instead.His diatribe is reminiscent of the tale of the judge who, after listen-ing patiently to a young lawyer's eloquent argument, told the law-yer, "That's a fine argument, young man. Let us hope that somedayyou find a case to which it applies."

Not to be outdone, the pro-Brady bill side of the debate offeredup this transparent straw man:

I leave you with this simple question that I have asked myself andanswered by supporting the Brady bill. Do you believe that it is aconstitutionally guaranteed right for any mentally incompetentperson, convicted felon, drug addict, or illegal alien to walk into agun store, fill out a form, sign their name, and walk out with ahandgun, with no questions even being asked by anyone? 165

162. See supra note 148 and accompanying text (quoting letter to editor printed in USAToday).

163. See DAVID L. ALLEN &JANE C. PARKs, ESSENTIAL RHETORIC 111-12 (1969) (describingcharacteristics of straw man attacks); DAMER, supra note 6, at 99 (labeling straw man argu-ments as fallacy of "Distortion"); SCHLAG & SKOVER, supra note 22, at 22-23 (noting effective-ness of dismantling argument through attack on straw man).

164. 137 CONG. REc. H2840 (daily ed. May 8, 1991) (statement of Rep. Smith) (describingcircumstances where guns can make potential victims and criminals more equal in terms ofpower).

165. Id. at H2859 (statement of Rep. Stenholm).

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Fortunately for the speaker, the question was framed as a rhetori-cal one. Otherwise, he would have risked being hooted off the po-dium by a unanimous and resounding, "Hell no!" No one, not eventhe NRA, has ever suggested that convicted criminals and mentalpatients have a constitutional right to buy handguns, with or withoutquestions asked. Everyone apparently agrees that these peopleshould be prohibited from purchasing handguns. The issue in theBrady bill debate was whether waiting periods and backgroundchecks are the appropriate means for accomplishing this. As in theprevious example, the speaker grossly distorted the real issue togive himself an easier target to attack. 166

The distinction between the straw man and the red herring is sub-tle. While the straw man diverts attention by unreasonably exagger-ating an opponent's position, red herrings divert attention bysending the audience chasing down the wrong trail after a non-is-sue. 167 An example of this involves Ronald Reagan's endorsementof the Brady bill. 168 Most Brady bill opponents simply opted not tomention the former President because his position was a painfulthorn in their side. One brave soul was not deterred, however. Inan amazing exhibition of obfuscation, an anti-Brady bill representa-tive managed to address Mr. Reagan's endorsement without con-fronting it. He accomplished this by shifting the focus of theargument from Mr. Reagan's endorsement to the way Democratshad ridiculed the former President's views when he was in office, asfollows:

[T]he proponents of the Brady bill seize upon the Ronald Reaganstatements and the Ronald Reagan who has come to the support

166. Cf George Papajohn, NRA Takes a Shot at CHA Ban on Guns, CI. TRia., May 18, 1991,at 1 (relating particularly flagrant straw man argument advanced in gun control dispute con-cerning authority of Chicago Housing Authority (CHA) to ban firearms in residential commu-nities operated by CHA). In response to a letter from the NRA questioning theconstitutionality of the ban, CHA Chairperson Vincent Lane said, "It's crazy for [the NRA] tobe a proponent of the continuing slaughter of young black males in these communities." Id.Questioning the constitutionality of the housing authority restriction in no way equated tobeing a proponent of murdering young African-American males. This argument was a flimsyand quite irresponsible straw man.

167. The red herring fallacy is named after a trick used in fox hunting. When the dogs arefollowing the wrong scent during a fox hunt, a herring, cooked to a brownish-red color, isdragged across the trail to shift the scent and, hence, the trail being followed. In rhetoric, thetrail is the argument and the red herring is an irrelevant issue used to draw attention awayfrom the real issue. See CORBETr, supra note 4, at 92 (discussing elements of red herringdiversion); DAMER, supra note 6, at 102-04 (describing use of red herring rhetorical ploy);FEARNSIDE & HOLTHER, supra note 5, at 124-25 (calling red herring fallacy "the patron saint ofthose being overwhelmed in argument").

168. See supra notes 70-75 and accompanying text (describing President Reagan's supportof both NRA and Brady bill).

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of the Brady bill as being the last word in support of their proposi-tion that is embodied in the Brady bill.

Mr. Speaker, where were these individuals when Ronald Reaganwas proposing the death penalty for individuals who used guns tokill? They scorned him. They laughed at Ronald Reagan. Wherewere they when Ronald Reagan proposed... exclusionary rules[so] that gun-carrying criminals could not walk out of court on atechnicality? They ridiculed President Reagan and his proposalson the exclusionary rule. Where were they on the whole compre-hensive crime package which was sure to focus on the gun-carry-ing criminal in this country and to try to do something aboutviolence? Nowhere to be found. They laughed at RonaldReagan.

16 9

This speaker fallaciously (albeit somewhat ingeniously) shifted at-tention from the damning effect of Mr. Reagan's blessing of theBrady bill to the red herring of whether Brady bill supportersagreed with the former President on earlier proposals.

This reasoning is defective because whether Brady supporters be-lieve in the correctness of Ronald Reagan's opinions about otherissues is irrelevant to whether they believe he is right about theBrady bill. Irrelevancy is the flaw in all red herring and straw manarguments. 170 The irrelevancy stems from the dissimilarity betweenthe real point in issue and the distorted point in the case of a strawman or the non-point in the case of a red herring. A person cansupport the Brady bill but still oppose disarming the populace.Likewise, a person can oppose the Brady bill but still be against con-victed criminals purchasing handguns. To argue about an issue thatis unconnected to the real issue, whether by distorting the real issueor by dredging up a non-issue, is to argue irrelevantly.

4. Faulty analogies

This is also the case with respect to faulty analogies, another di-versionary fallacy that was prevalent in the Brady bill dispute. Anal-ogies are a persuasive form of reasoning because consistenttreatment of similar situations strikes most people as not only logi-cal, but fair. Children intuit this principle at an early age. Hence,parents for all time have been forced to contend with the argument:"Why can't I? Suzy's parents let her [go to the party, stay up late,dye her hair purple, etc.]" If a person perceives two situations assimilar, the person expects them to be treated similarly.

169. 137 CONG. REc. H2824 (daily ed. May 8, 1991) (statement of Rep. Gekas).170. See FEARNSIDE & HOLTHER, supra note 5, at 124-25 (explaining that red herring and

straw man arguments do not respond to real question).

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To reason by analogy is to reason inductively, that is, to assumethat certain things are probably true because we know certain otherthings to be true.' 7 ' In the law, analogical reasoning is the meansby which courts honor the doctrine of stare decisis. Judges make deci-sions by searching for similar cases from which to extract a rule toapply to the case under consideration. 172

For an analogy to be valid, the situations being analogized mustbe truly similar. Moreover, they must be alike in ways that are im-portant to the reason why the analogy is being drawn. 173 There maybe many similarities between two events, but if they are not relevantto the heart of the dispute, any attempt to draw an analogy betweenthe two events would be fallacious. Two cases involving automobileaccidents may involve a host of amazing similarities such as thecolor and model of the car, the day of the week on which the acci-dent occurred, and that both drivers wore the unusual combinationof Chanel suits and Birkenstock sandals. However, these similaritiesdo not make the cases analogous for purposes of extracting a rule toapply to both of them.

In the Brady bill debate, opponents of the legislation repeatedlyattempted to analogize waiting periods for handgun purchases withwaiting periods to purchase other commodities, such as a waitingperiod to purchase an automobile, a baseball bat, or cocaine. Withregard to automobiles, Representative Smith argued:

Of course guns do kill but automobiles are the instrument in-volved in killing many more times than guns are, and sometimesthey kill people within the first 7 days of ownership, but we don'thear a proposal to delay the purchase of an automobile by 7 daysor that it would reduce the number of people killed byautomobiles. 1

74

Representative Schulze offered the analogy to purchasing baseballbats: "Baseball bats killed 29 people in the city of Chicago in 1989.Should we require a waiting period on baseball bats?"'7 Finally,Representative Staggers asserted the analogy to purchasing cocaine:"A 7-day waiting period is a simplistic answer. In the same logic, if

171. See generally CopI, supra note 5, at 348 (describing theories of analogy and inductivereasoning).

172. See EDWARD LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949) (describing thisprocess of "reasoning by example" in classic book about legal reasoning). For a more recentwork explaining analogical reasoning in the law, see James R. Murray, The Role of Analogy inLegal Reasoning, 29 UCLA L. REV. 833 (1982).

173. See Copi, supra note 5, at 358-60 (explaining necessity of relationship between sub-jects of analogy).

174. 137 CONG. REC. H2840 (daily ed. May 8, 1991) (statement of Rep. Smith).175. Idl at H2862 (statement of Rep. Schulze) (noting also use of other inanimate objects

besides baseball bats, including knives and fireplace pokers, in commission of violent crimes).

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we would wait, say, 7 days to purchase cocaine, we could solve thedrug problem." 176

These analogies are ridiculously defective. The situations beingcompared are very different, and the similarities that do exist areirrelevant to the reasons supporting a waiting period for thepurchase of handguns. The only similarities between purchasetransactions for handguns and purchase transactions for auto-mobiles, baseball bats, or cocaine are: first, the transactions involvepurchases, and second, the items purchased are capable of inflictingdeath or serious bodily injury on human beings.

These similarities are irrelevant to the reasons underlying waitingperiods for handgun purchases. The primary purpose for imposinga waiting period to buy a handgun is to give police an opportunity toperform a background check to determine whether the purchaser isa convicted felon or is otherwise prohibited from possessing a fire-arm.1 77 Waiting periods to purchase automobiles and baseball batshave no logical connection to this purpose because no laws prohibitconvicted felons from buying these items. With respect to cocaine,it is illegal for any person to purchase the drug under any circum-

176. Id at H2856 (statement of Rep. Staggers).177. H.R. 7, 102d Cong., 1st Sess. § 2(a)(s)(1)(A) (1991); S. 1241, 102d Cong., 1st Sess.,

§ 2701(a)(u)(2) (1991). Some Brady bill proponents argued that the waiting period wouldserve as a "cooling off" period in addition to allowing time for the performance of back-ground checks. 137 CONG. REC. H2816 (daily ed. May 8, 1991) (statement of Rep. Lloyd).The rationale behind a cooling off period is that a person intent on buying a gun to kill some-one might deliberate about the matter and change his or her mind if forced to wait severaldays to obtain the gun. This justification for a waiting period was de-emphasized as the de-bate progressed, however. In agreeing on a bill that would have phased out the federallymandated waiting period once a computerized instant check system became operational,House and Senate conferees implicitly rejected the notion that the waiting period would servedouble duty as a cooling off period. See supra note 3 (discussing legislative history and evolu-tion of Brady bill).

Even if an interval for deliberation was one of the justifications for a waiting period, thiswould not render the attempted analogies any more sound. Theoretically, it is true that peo-ple buying baseball bats to use as murder weapons might change their minds if they wererequired to wait a few days before obtaining the bats. But of course, the same could be saidabout thousands of products capable of being used for mayhem: knives, rakes, frying pans,rat poison, rope, and so on. Guns are unique in that they are the only product capable ofinflicting immediate death from a safe distance in a relatively clean and efficient manner.Many people capable of pulling the trigger of a gun probably are not capable, for physical aswell as psychological reasons, of bludgeoning or garroting another human being to death. Itis not simply a coincidence that guns, particularly handguns, are the clear weapons of choicefor killing people. The Statistical Abstract of the United States shows that guns were thecause of death in approximately 60% of all murders in the years 1980 and 1985-88. BUREAUOF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 173(1990). Handguns were responsible for 44% of all murders during those years. Id. Instru-ments used to cut or stab came second to guns as the choice instrument for murder, beingused approximately 20% of the time. Id Blunt objects, including baseball bats and any otherinstrument that could be used to bludgeon, placed third at roughly 5.5% of all murders in1980 and 1985-88. Id


stances, so discussion of a waiting period to buy cocaine makes littlesense.

The dissimilarities between these purchases make analogies be-tween them inapposite. While all the products present a danger ofinflicting great harm, only handguns have that as their primary pur-pose. The purpose of automobiles is to travel. The purpose ofbaseball bats is to pursue the national pastime. The purpose ofhandguns is to kill. Any kind of rational risk-utility analysis wouldseem to support greater restrictions on handguns than on productsthat have common everyday utility to large segments of society.

Brady bill foes made other strange analogies. Attempting todemonstrate inconsistency on the part of "liberal" supporters of thebill, anti-gun control partisans analogized waiting periods for hand-gun transactions to waiting periods for free speech. 178 The argu-ment was that if a person is willing to support a waiting period tobuy a gun, the person should also support waiting periods to speakfreely. For example, the person should support provisions obligingnewspaper editors to wait seven days before publishing the news.The flaw, of course, is that there is no similarity between handgunpurchases and free speech, other than that both are the subject ofconstitutional provisions. As stated above, the primary purpose forimposing a waiting period for handgun purchases is to prevent ille-gal sales to convicted felons. Obviously, no similar purpose wouldbe achieved by requiring a waiting period before a newspaper couldpublish the news.

The most irresponsible analogy of the Brady bill debate camefrom Oklahoma Representative Bill Brewster. In arguing against awaiting period, Representative Brewster said, "To tax these individ-uals with a 7-day waiting period is the same as telling criminals thatthey have a 7-day hunting period on America's innocent fami-lies." 179 Obviously, a seven-day waiting period to buy a gun is not

178. See 137 CONG. REC. H2819 (daily ed. May 8, 1991) (statement of Rep. Walker). Rep-resentative Walker stated:

I wonder what the reaction would be of those people if we, for instance, said you maysay anything you want in our society, but first of all there has to be a 7-day cooling offperiod. Mr. Editor, you can write anything you want in your newspaper, but first ofall you have to apply to the Federal Government and tell them what you are going towrite about.

Id.; see also id. at H2856 (statement of Rep. Staggers). Representative Staggers stated:The same logic is that if in fact we said to journalists, "Wait 7 days before you fileyour stories," we would have no libel suits. Now I assume that if we could wait 7 days... for our second amendment rights, the same logic would say we can wait 7 daysfor our first amendment rights.

Id.179. 137 CONG. REC. H2862 (daily ed. May 8, 1991) (statement of Rep. Brewster) (empha-

sis added) (declaring Brady bill "an outrage and an assault on common sense").

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"the same" as an open hunting season on American families. Thisassertion was so wild as to not warrant serious analysis.

While their analogies were not as bizarre as some of those offeredby Brady bill opponents, supporters of the legislation propoundedtheir own faulty analogies. Describing it as a "perfect analogy,"' 80 apro-Brady bill representative compared a waiting period to buy ahandgun to the noncontroversial requirement that visitors to theUnited States Capitol pass through a metal detector to gain accessto the building.'18 This analogy, however, is far from perfect. Firstof all, there is no constitutional right to enter the Capitol building,whereas handgun waiting periods arguably have constitutional im-plications.' 8 2 Moreover, a short delay waiting in line to passthrough a metal detector is not equal to the burden of a seven-daywaiting period to purchase a gun. Finally, there is a much more di-rect means/end connection with respect to the Capitol metal detec-tor than there is in the case of waiting periods to purchasehandguns. Metal detectors presumably are effective in preventingpersons from bringing most kinds of weapons into the Capitol,whereas the extent to which waiting periods for handgun purchaseswill keep criminals from obtaining guns is questionable.18 3

As seen in this discussion, analogies have dual persuasive poten-tial. 18 4 Analogies can be employed to generate opposition to a pro-posal by comparing the proposal to measures that most peoplewould find objectionable. This was the case when Brady bill foesanalogized handgun waiting periods to waiting periods to purchaseautomobiles or to speak freely.' 85 Because most people would re-

180. Id. at H2838 (statement of Rep. Gilchrest).181. Id.182. See id. at H2838-39 (statement of Rep. Poshard) (arguing that Staggers bill requiring

immediate background checks is less restrictive of constitutional right to bear arms thanBrady bill's seven-day waiting period);J. Jennings Moss, Senate Votes 5-Day Wait for Handguns,WASH. TIMES,July 1, 1991, at A5 (relating NRA lobbyist's argument that waiting period of anykind to purchase handguns is unconstitutional).

183. See Robert J. Philhower, Automatic Sentences for All Gun Crimes, N.Y. TIMES, Apr. 25,1990, at A28 (polling over 16,000 police chiefs and sheriffs and concluding that over 76% ofthese law enforcement officers do not believe handgun waiting period will have effect on crim-inal obtaining firearm); cf 137 CONG. REC. H2838 (daily ed. May 8, 1991) (statement of Rep.Gilchrest) (supporting metal detectors at Capitol until better security system is available andlikewise supporting Brady bill as best currently available means to deter criminal gunpurchases).

184. See CORnE'r, supra note 4, at 115-20 (explaining that analogies are basically compari-sons used to show either similarities or differences).

185. See also 137 CONG. REC. H2823 (daily ed. May 8, 1991) (statement of Rep. Unsoeld)(arguing that fundamental principle supporting constitutional rights such as free speech, freeexercise of religion, and women's right to choose abortion is that citizens need not wait forgovernmental approval prior to exercising these rights); cf id. at H2843 (statement of Rep.Carper) (analogizing seven-day waiting period to purchase handguns with inconvenience ofobtaining driver's license or registering to vote).

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ject waiting periods to buy cars or to speak as unreasonable, theywould also be likely to reject the Brady bill if they were convincedthe situations were similar. Analogies can also be used to engendersupport for a proposal by comparing the proposal to existing meas-ures that most people agree are sensible.186 In this way, the Bradybill supporter mentioned earlier sought to persuade the audiencethat handgun waiting periods are a good idea by comparing them tothe metal detectors at the Capitol, which most people probably be-lieve to be a reasonable safety precaution. Because these analogiesdid not involve truly similar situations, however, the comparisonswere fallacious diversions into irrelevancy.' 8 7 It is irrelevant thatwaiting periods to buy automobiles are not wise because such delaysare not analogous to waiting periods to buy handguns. Similarly, itdoes not matter whether metal detectors at the Capitol make sense,because metal detectors have nothing in common with handgunwaiting periods.

C. Fallacies of Proof

The fallacies evaluated in this section involve problems of proof.Proof in argumentation constitutes the premises from which conclu-sions follow.' 8 8 Sound conclusions generally require convincing ev-idence to sustain them.'8 9 Where evidence is ignored, distorted, orotherwise manipulated, the argument is fallacious.' 90 The gun con-trol controversy provides ample rhetoric to illustrate these fallacies.

1. One-sided assessment

It is fallacious to ignore countervailing evidence or arguments inattempting to persuade. 19 1 Virtually any argument can be made tosound convincing if relevant authority tending to disprove the argu-ment is overlooked. Such one-sided assessments or half-truths 192

186. See CORBETr, supra note 4, at 115-20 (describing how comparison of similarities isbasic principle behind all inductive argumentation and analogy).

187. See generally CHASE, supra note 86, at 81-82 (discussing fallacy of false analogy).188. See COHEN & NAGEL, supra note 29, at 7 (explaining that conclusions are implied by

premises of complete evidence or proof and that reasoning or inference from premises iscalled deductive reasoning); IRVING M. CoPI & CARL COHEN, INTRODUCTION TO LOGIC 5-14(1990) (providing analysis of arguments that consist of multiple propositions of which one,called conclusion, is claimed to follow from others).

189. See FEARNSIDE & HOLTHER, supra note 5, at 2 (observing that it is of little comfort toknow argument is entirely logical, that is, that conclusions are drawn from premises and rulesof syllogism are observed, if premises include fraud or delusion).

190. See DAMER, supra note 6, at 54-64 (explaining that fallacious arguments lacking inproper evidentiary support include arguments that ignore, suppress, or minimize importanceof obvious evidence unfavorable to other side's position).

191. DAMER, supra note 6, at 60-62.192. The one-sided assessment fallacy travels under a variety of names. See, e.g., DAMER,

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may not seem pernicious to attorneys or students of the law becauseeffective advocacy requires skill at emphasizing favorable evidenceand deemphasizing or distinguishing unfavorable evidence. For ex-ample, if a defense lawyer in a capital case insisted during summa-tion on giving an evenhanded, objective analysis of the testimony,he or she would be rendering ineffective assistance of counsel. 93

Pursuit of the truth, some might say, is the lawyer's goal only if thetruth happens to coincide with the client's interests. What makessuch sleight of hand proper in this context is the adversarial natureof the legal process. 194 If there is competent counsel on both sides,the fact-finder ultimately will hear the important arguments and evi-dence on both sides.' 9 5 However, the fact that one-sided assess-ments are accepted as part of partisan advocacy does not make themsound. 196 They remain fallacious and defective.

Outside of the legal process, half-truths become more insidious.Where debate occurs in an arena not structured so as to ensure thatthe arguments and evidence on both sides are fully and fairlypresented, a danger exists that opinions will be formed in an unen-lightened way.' 9 7 This includes debate on most social and politicalissues such as affirmative action, abortion, and gun control. It istrue that relevant facts and argument on both sides of prominentissues will be disseminated, but in public debate, the disseminationis likely to be fractured and unbalanced. In a trial, the fact-findercannot avoid hearing both sides because both the judge and jury sitthrough the trial from beginning to end. Outside of the court room

supra note 6, at 60-61 (calling fallacy "Neglect of Relevant Evidence"); HAMBLIN, supra note 5,at 25 (referring to fallacy as "special pleading or half truth"); SCHLAG & SKOVER, supra note 22,at 19 (naming fallacy as "Competing Authority"); Jack L. Landau, Logic for Lawyers, 13 PAC.LJ. 59, 93 (1981) (labeling one-sided assessment fallacy as fallacy of "Suppressed Evidence").

193. See MODEL RuLEs OF PROFESSIONAL CONDUCT Rule 1.3 cmt. (1991) ("A lawyer shouldact with commitment and dedication to the interests of the client and with zeal in advocacyupon the client's behalf."); MODEL CODE OF PROFESSIONAL RESPONSIBILrry Canon 7 (1991)(noting that lawyers should "represent a client zealously within the bounds of the law"); seealso HAMBLIN, supra note 5, at 25 (surmising that attorney could not build successful practicewithout using fallacy of half-truth).

194. See DAMER, supra note 6, at 61 (noting that attorneys' adversarial role in judicial pro-ceedings is exempt from truth-seeking process because it is jury and judge and not attorneythat must scrutinize and evaluate truthfulness of evidence in arriving at judgment).

195. See DAMER, supra note 6, at 61 (examining two situations, adversarial method ofjudi-cial procedure and debating clubs, where slanting or neglecting evidence is culturally accepta-ble because it is presumed that each side will attack or reveal irrelevancies and inconsistencieson other side and that neutral party will decide issue being litigated or debated on basis ofevidence and arguments presented).

196. See DAMER, supra note 6, at 61 (arguing that winning debate or court case is not prin-cipal concern of those interested in truth or rational decisionmaking).

197. See DAMER, supra note 6, at 61 (explaining that failure to evaluate counter-evidence toone's own claim violates standard methodological principle of inquiry that one should investi-gate all sides to issue and then accept position best supported by evidence).

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the discourse is less structured, and listeners are likely to receiveonly bits and pieces of the relevant argument. Through uncon-scious self-selection, listeners also are likely to hear only those partsof the debate with which they already agree. 198 This fact makes bal-ance a crucial element in public discourse.

Fundamental to any discussion of gun control is the proper inter-pretation of the Second Amendment, which provides that "[a] wellregulated Militia, being necessary to the security of a free State, theright of the people to keep and bear Arms, shall not be in-fringed."' 199 The Amendment is subject to two very different inter-pretations. One view is that the Amendment affords no individualright to bear arms, but rather protects only a collective "state" rightto maintain an organized militia.200 Proponents of this "collectiveright" position assert that the Second Amendment was promulgatedto allow states to protect themselves from the threat of the new na-tional government's standing army by maintaining militias. Theyfind support for their interpretation in the linguistic structure of theAmendment, arguing that the "well regulated Militia" preambleserves to restrict the clause relating to the right to keep and beararms. Proponents of the competing view argue that the SecondAmendment guarantees and protects an individual right to keep andbear arms. 20 Adherents to this "individual right" view rebut the

198. See ANTOINE ARNAUD, THE ART OF THINKING 266 (James Dickoff & Patricia Jamestrans., 1964) (1962) (discussing personal beliefs and self-interest as sources of believingwhether statement is true).

199. U.S. CONsT. amend. II.200. For commentary espousing the collective view of the Second Amendment, see Law-

rence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM.HIsT. 22, 42 (1984) (commenting on long-held position that right was designed to maintaincollective militia, not grant specific individual right); Keith A. Ehrman & Dennis A. Henigan,The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L.REv. 5, 57 (1989) (arguing that Framer's intent behind Second Amendment was to assurestates that they would retain right to organized and effective militia, not to create broad indi-vidual right); Peter B. Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 Nw. U.L. REv. 46, 67-70 (1966) (asserting that Second Amendment refers to collective right of bodypolitic of every state to be protected by independent state militia); RalphJ. Rohner, The Rightto Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U. L. REV. 53, 77-80 (1966) (advo-cating approach to avoid debate over whether right to bear arms is individual or collectiveone; namely, "the nature of the right to bear arms should be expressed in terms of the pur-poses for which firearms can conceivably be used"); Roy G. Weatherup, Standing Armies andArmed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q 961, 1000-01 (1975) (explaining that adoption of Second Amendment "was result of political struggle torestrict power of national government and to prevent disarmament of state militias," andconsequently, delegates at Constitutional Convention had no intention of establishing per-sonal right to bear arms); John C. Santee, Note, The Right to Keep and Bear Arms, 26 DRAKE L.REV. 423, 444 (1977) (accepting collective view of right to bear arms and concluding thatSecond Amendment operates solely as restriction on Federal Government).

201. For commentary espousing the individual right view, see David 1. Caplan, Restoringthe Balance: The SecondAmendment Revisited, 5 FORDHAM URB. LJ. 31, 40 (1976-77) (arguing thatfirst Congress, in enacting Second Amendment, stated that well-regulated militia was "neces-


linguistic argument by noting that in the 18th century, the "militia"included all able-bodied citizens of the community and not simplythose who were members of state defense organizations equivalentto the modem day National Guard.20 2

Both sides in this interpretive debate bolster their respective posi-tions with extensive historical and ideological analysis. 203 In fact, ithas been observed that both sides often draw on the same historicaldata to support their opposing views. 20 4 Each side asserts its posi-tion with conviction and certitude. The problem is that there is littlebasis in this debate for conviction or certitude. A review of the liter-ature reveals strong arguments and evidence on each side. Yet, inorder to persuade readers to adopt their own strongly held beliefs,the writers sometimes ignore opposing arguments and evidence. 20 5

This results in biased, one-sided analysis.Illustrative of the one-sided analysis is the disagreement as to

whether the United States Supreme Court has adopted the collec-tive right or the individual right interpretation of the right to beararms. The centerpiece of the Court's Second Amendment jurispru-

sary" to security of free state and not "sufficient" to security of free state, and that Congressrecognized that ordinary processes of law may be insufficient to protect people at all times);Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Jdges Reign?, 36OxLA. L. REv. 65, 100-01 (1983) (arguing that Framers' intent must be liberally construed andthat inherent in right to bear arms to secure well-regulated militia was right to self-defense);Richard E. Gardiner, To Preserve Liberty-A Look at the Right to Keep and Bear Arms, 10 N. Ky. L.REV. 63, 95 (1982) (rejecting distorted interpretation of Second Amendment that deprivesindividuals of right to bear arms and embracing original and plain meaning of right based onhistorical premise); David T. Hardy, Armed Citizens, Citizen Armies: Toward a jurisprudence of theSecondAmendment, 9 HARv.J.L. & PUB. POL'Y 559, 561 (1986) (concluding that individual rightinterpretation of right to bear arms is only approach that has any validity given historicalevidence, Framers' intent, and need to maintain consistent standard of constitutional inter-pretation); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment,82 MICH. L. REv. 204, 267-68 (1983) (arguing that Second Amendment language and philo-sophical background support individual right interpretation for three purposes: (1) crimeprevention or self-defense; (2) national defense; and (3) preservation of individual liberty);Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69J. AM. HisT. 599, 613-14(1982) (stating that "the Second Amendment did not intend for Americans of the late eight-eenth century to possess arms for their own personal defense").

202. E.g., Levinson, supra note 20, at 646-47 (arguing that term "militia" in 18th centuryreferred to all people or at minimum to those individuals treated as full citizens, and provid-ing historical basis for conclusion).

203. Compare THE GUN CONTROL DEBATE, supra note 11, at 25-34 (using historical, polit-ical, and social evidence to support strict gun control position) with THE GUN CONTROL DE-BATE, supra note 11, at 93-107 (criticizing arguments in favor of strict gun control usinghistorical, statistical, and ideological factors).

204. See Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 LAw & CoNTEMP.PROB. 125, 125 (1986) (arguing that because both sides of gun control debate use same his-torical data to support their views, historical context in which Second Amendment originatedhas been obscured).

205. See DAMER, supra note 6, at 54-55 (explaining how conclusions are often based onignorance); HAMBLIN, supra note 5, at 43-44 (discussing fallacy of argumentum ad ignorantiumthat deals with purposeful refusal to examine opposing evidence).

THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 42:53

dence is its decision in United States v. Miller.20 6 The defendants inMiller were charged with transporting an unregistered sawed-offshotgun in interstate commerce in violation of the National Fire-arms Act of 1934.207 The district court quashed the indictment,agreeing with the defendants' demurrer that the Firearms Act of1934 violated the Second Amendment. 208 On direct appeal, in anopinion offering a little something for everyone, the Supreme Courtheld that possession of the sawed-off shotgun was not protected bythe Second Amendment. 20 9

206. 307 U.S. 174 (1939).207. United States v. Miller, 307 U.S. 174, 175 (1939).208. Id at 177.209. Idt at 178. While the correct interpretation of Miller is not the concern of this discus-

sion, a brief summary of the opposing arguments in the interpretive debate may assist thereader. The key passage in the opinion, from which both sides draw support, is the followingparagraph:

In the absence of any evidence tending to show that possession or use of a 'shotgunhaving a barrel of less than eighteen inches in length' at this time has some reason-able relationship to the preservation or efficiency of a well regulated militia, we can-not say that the Second Amendment guarantees the right to keep and bear such aninstrument. Certainly it is not within judicial notice that this weapon is any part ofthe ordinary military equipment or that its use could contribute to the commondefense.

Miller, 307 U.S. at 178. Supporters of gun control argue that by casting the issue in terms ofwhether a sawed-off shotgun bears a reasonable relationship to the maintenance of the militia,the Court endorsed the collective right interpretation of the Second Amendment. See May-nard H.Jackson, Jr., Handgun Control: Constitutional and Critically Needed, 8 N.C. CENT. LJ. 189,196 (1977) (pointing to Court's reasoning in prohibiting use of sawed-off shotgun becauseweapon does not contribute to effectiveness of militia as support for collective right interpre-tation); M. Truman Hunt, Note, The Individual Right to Bear Arms: An Illusory Public Padfer,1986 UTAH L. REV. 751, 757 (1986) (highlighting Court's emphasis on well-regulated militiato support collective interpretation of Second Amendment). Opponents counter by quotingthe Court's observation that the militia is comprised of "all males physically capable of actingin concert for the common defense." Miller, 307 U.S. at 179; see Robert Dowlut, Federal andState Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59, 74 (1989) (noting Court's re-fusal to take judicial notice that right to arms bears reasonable relationship to militia). This,goes the argument, makes the Court's emphasis on the militia consistent with an individualright interpretation of the amendment. Dowlut, supra, at 74.

Adherents of the individual right view suggest that the defendants in Miller, who did notappear before the Supreme Court, Miller, 307 U.S. at 175, lost only because of a failure inproof. See, e.g., Dowlut, supra, at 73-88 (opining that Miller opinion is defective in that Courtonly considered plaintiff government's view); Nelson Lund, The Second Amendment, Political Lib-erty, and the Right to Self-Preservation, 39 ALA. L. REV. 103, 130 (1987) (emphasizing lack ofevidence, defendants' disappearance following trial court's dismissal, and defendants' failureto brief their side of argument as justifications for defendants' loss); Weatherup, supra note200, at 999 (suggesting that after failure of defendants to appear it was understandable thatCourt in Miller viewed the issues as simple and not needing much analysis). Stressing theCourt's caveat in the above-quoted passage that in the absence of evidence the Court wouldnot take judicial notice that a sawed-off shotgun is a weapon that could be used by the militiato contribute to the common defense, adherents of the individual right theory assert thatMiller can be read to guarantee protection for any weapon with proven military utility. SeeDowlut, supra, at 74 ("Miller leaves unanswered whether modem arms oF mass destructionmay be possessed by individuals."); Levinson, supra note 20, at 654-55 ("Ironically, Miller canbe read to support some of the most extreme anti-gun control arguments, e.g., that the indi-vidual citizen has a right to keep and bear bazookas, rocket launchers and other armamentsthat are clearly relevant to modem warfare, including, of course, assault weapons."); Jacob


Critics and supporters of gun control both cite Miller as authorityfor their respective views regarding the proper interpretation of theSecond Amendment.210 While some of this commentary is bal-anced, much of it presents an unwarrantedly one-sided assessmentof the issue.211 This bias is reflected in the underwritten and over-confident conclusions on the meaning of Miller offered by somemembers of the collective right faction. One advocate of the collec-tive right theory recently cited Miller for the assertion that theSupreme Court has "ruled . . .that the Second Amendment hasnothing to do with individual rights to bear arms but rather the rightof the states to an armed militia."121 2 A reporter for the New YorkTimes echoed this sentiment when he stated that the Court has"ruled at least three times that the Second Amendment has not theslightest thing to do with an individual's right to bear arms. ' 213 Thewriter described Miller as "the most trenchant of these deci-sions."'214 And a scholar discussing Miller concluded that "[t]he sec-ond amendment as interpreted within this context refers to acollective right and not an individual right. 215 Another commenta-tor, seizing on two sentences from the opinion in Miller, stated con-fidently, "[t]hese words alone undercut any individual rightinterpretation of the Second Amendment. 21 6 These conclusionsnot only ignored relevant counterarguments derived from a fairreading of the Miller opinion, but also failed to provide proper anal-ysis to reach the particular conclusion.

Sullum, Devaluing the 2d Amendment, CHI. TRIB., May 7, 1991, at 23 (asserting that under Millertest, weapons such as assault rifles and machine guns "are clearly covered by the 2damendment").

210. See supra note 209 (providing numerous views on proper interpretation of SecondAmendment following Miller).

211. See supra notes 191-200 (discussing fallacy of one-sided assessment or half-truth).212. Amitai Etzioni, Gun ControL" A Vanilla Agenda, 1 RESPONSIVE COMMUNITY 6, 9 (1991).

Etzioni also quoted former Solicitor General and Dean of Harvard Law School Erwin Gris-wold as stating, "Mhat the Second Amendment poses no barrier to strong gun laws is per-haps the most well-settled proposition in American constitutional law." Id. Another pair ofcommentators used almost the same words to assert this point. Ehrman & Henigan, supranote 200, at 40 ("mhe proposition that the second amendment does not guarantee eachindividual a right to keep and bear arms for private, non-militia purposes may be the mostfirmly established proposition in American constitutional law.").

213. King, supra note 11, at 82.214. Id.215. Jackson, supra note 209, at 196.216. Weatherup, supra note 200, at 999. The "words" in Miller that Weatherup referred

to are: "With obvious purpose to assure the continuation and render possible the effective-ness of such forces the declaration and guarantee of the Second Amendment were made. Itmust be interpreted and applied with that end in view." Id. at 999 (quoting Miller, 307 U.S. at178). However, these words must be read in context with the Court's subsequent statementthat the "[M]ilitia comprised all males physically capable of acting in concert for the commondefense." Miller, 307 U.S. at 180. For a more complete discussion of the content of the Milleropinion, see supra note 209.

THE AMERICAN UNIVERSITY LAW REVIEW

Supporters of the "individual right" theory have, for the mostpart, presented a more in-depth analysis of Miller.2 17 This may bedue to the fact that a cursory reading of the case more readily sug-gests a collective right interpretation, 218 and, therefore, opponentsof that view may feel they have more explaining to do. Neverthe-less, while the analyses offered by those who advance the individualright theory are generally more complete, their conclusions are justas one-sided. For example, in stark contrast to the collective rightinterpretations quoted above, a partisan of the individual right campoffered this slant on the case: "[I]t is clear that Miller, even with itslimitations, supports the view that the second amendment guaran-tees an individual right to keep and bear arms, including hand-guns." 219 Another supporter of the individual right view offeredthis equally one-sided assessment of the case: "[D]espite the short-comings of the Miller opinion, the Supreme Court correctly con-cluded that the Second Amendment protects an individual's right tokeep and bear arms and thus rejected the untenable collective righttheory." 220

Obviously, these polar interpretations of Miller cannot both becorrect.221 It is doubtful that either is correct. The most accurateassessment of Miller is that the opinion did not clearly indicatewhether the Second Amendment creates an individual right or onlya collective right.222 The correct interpretation of Miller is not reallythe issue here. The issue is the process used to arrive at one inter-pretation or the other. To present Miller as standing clearly foreither the collective right view or the individual right view is to com-mit the fallacy of one-sided assessment, because such a presentationdepends on ignorance of strong competing evidence andarguments. 223

217. See supra note 201 and accompanying text. (surveying individual right interpretationsof Second Amendment); infra notes 219-20 and accompanying text (same).

218. See United States v. Miller, 307 U.S. 174, 178 (1939) (reasoning that if sawed-offshotgun is not "part of the ordinary military equipment" nor contributes to common defense,the Second Amendment does not guarantee right to bear such instrument); see also supra note209 and accompanying text (discussing various interpretations of Miller).

219. Gardiner, supra note 201, at 92.220. Lund, supra note 209, at 110.221. But see Levinson, supra note 20, at 642 (dismissing any approach to Second Amend-

ment or Constitution that condemns opposing view as simply wrong due to "politics of inter-pretation" that explain why one approach appeals to certain analysts at certain times whileother analysts favor different approach).

222. One possibility is that the Court in Miller endorsed what is known as the "hybrid"interpretation of the Second Amendment, which holds that "individuals, not the organizedmilitia, are beneficiaries of a right to bear arms, but that the right is applicable only to militiaor military-related arms ...." Hardy, supra note 201, at 620.

223. A related kind of one-sided and incomplete assessment takes the form of relying onanecdotal evidence to establish the truth of a proposition. Fischer calls this the fallacy of the

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2. Causal fallacies

Lawyers who remember their first-year torts class know that fewlegal doctrines are as bereft of meaningful content as that of causa-tion. Even ignoring the illusory principles of proximate or legalcause and concentrating on the comparatively concrete concept ofcausation in fact, "causality may have no more reality than a dragonor a mermaid. ' 224 This is because the search for a causal nexus,within or outside the law, requires that we apply a hypothetical alter-native test in which we must compare what happened under a set ofknown circumstances to what would have happened under a differ-ent set of circumstances. The problem is the uncertainty involved inascertaining what would have happened under different circum-stances. Such determinations are seldom subject to any kind of em-pirical proof.2 25

As a result, we are often forced to draw inferences from nothingmore than the assumption post hoc, ergo propter hoc (after this, there-fore because of this). In other words, we reason that because oneevent followed another, the latter was caused by the former. Post hocreasoning is generally condemned as fallacious. 226 This is not al-

lonely fact. FISCHER, supra note 7, at 109. The fallacy is well-illustrated by Fischer's storyabout a scientist who published an astonishing conclusion concerning the behavior of rats. IdA doubting colleague came to visit the scientist and asked to review the data on which hebased his generalization. Id "Here they are," the scientist said as he handed over a sheaf ofmaterials. Il Then, pointing to a cage in the comer, he added, "there's the rat." Id

In the disagreement over the Brady bill, both sides tried to prove their positions with anec-dotal evidence showing that waiting periods either would or would not be effective. In argu-ing that the nation's "rogue's gallery of armed felons would be little deterred by any over-the-counter gun control measure," then-Attorney General Richard Thornburgh described six hei-nous crimes where the criminal involved obtained the gun by a means other than a retailtransaction. Richard Thornburgh, Six Real Guns..., WASH. POST, May 2, 1991, at A19. Otheropponents of the Brady bill pointed to the case of Bonnie Elmasri, a Wisconsin woman whosebattering husband killed her the day after she was prevented from obtaining a firearm becauseof a two-day waiting period. 137 CONG. REc. H2862 (daily ed. May 8, 1991) (statement ofRep. Schulze); id at H2859 (statement of Rep. Vucanovich). Waiting period advocates coun-tered with their own anecdotes involving cases where convicted felons or mental patientspurchased weapons over the counter that subsequently were used to commit crimes. See id atH2837 (statement of Rep. Roukema) (pointing to shooting of President Reagan's press secre-tary James Brady and numerous other instances where background check may have preventedinjuries or deaths); 137 CONG. REC. S9827 (daily ed.July 11, 1991) (statement of Sen. Byrd)(describing scenarios where convicted felons and ex-convicts purchased guns without back-ground checks and proceeded to kill their victims). No valid generalizations can be drawnfrom such scant evidence, however. In a nation where millions of people own millions offirearms and where more than 20,000 murders occur each year, the inventory of gun-relatedtragedies is extensive enough to permit probably any conclusion to be drawn from isolatedcases.

224. W.P. MONTAGUE, THE WAYS OF KNOWING, OR THE METHODS OF PHILOSOPHY 199 (J.H.Muirhead ed., 1928) (noting that causation may be merely product of human imagination).

225. See generally FEARNSIDE & HOLTHER, supra note 5, at 17-21 (examining faulty causalgeneralizations).

226. For a discussion of thepost hoc or false cause fallacy, see DAMER, supra note 6, at 68-69(providing examples of post hoc fallacies and explaining that chronological relationship is only


ways true, however. In many instances, our everyday experiencesallow us to draw reasonable inferences of causation from a sequenceof events. This is common in the law. Thus, where a person fallswhile hurrying down a defendant's stairs, which were unlit and hadno handrail, a reasonable inference can be drawn that the defend-ant's negligence caused the fall. 227

Post hoc reasoning is valid when applied to such simple, everydayoccurrences because a substantial body of community experienceexists by which to evaluate the events. While it is possible that theperson would have fallen even if the stairs had been properly lit anda handrail provided, common experience tells us that traversing un-lit stairs with no handrail greatly increases the likelihood that an ac-cident will occur. Falling down unsafe stairs is a natural andordinary sequence of events.228 Post hoc reasoning in these circum-stances is not fallacious.

The more complex the events, however, the more likely it is thatpost hoc reasoning will be unsound.229 As the number of causal vari-ables increases, the ability to draw reasonable inferences of causa-tion based on a mere sequence of events decreases. A remark madeduring the 1991 San Francisco mayoral race is illustrative. Com-menting to a reporter about incumbent mayor Arthur Agnos' dropin the polls the month before the election, an advisor to a compet-ing candidate said, "[Agnos] spent $1 million to drop five points. Ifhe had spent $2 million, would he have dropped 10 points?" 230

This statement suggests that Mayor Agnos' drop in the polls wascaused by his spending $1 million on the campaign, when, in fact, itis doubtful that any such correlation existed. Most likely, far morecomplex factors than campaign spending were responsible forAgnos' decline in support. To establish a causal relationship involv-ing any complex sequence of events requires more in the way of

one factor in establishment of causal relationship); FEARNSIDE & HOLTHER,supra note 5, at 21-22 (discussingpost hoc reasoning with examples and comments); FISCHER, supra note 7, at 166-67 (explaining post hoc fallacies in historical scholarship); HAMBLIN, supra note 5, at 37-38 (re-viewing philosophers' debate over false cause fallacy).

227. See, e.g., Reynolds v. Texas & Pac. Ry. Co., 37 La. Ann. 694, 698 (La. 1885) (explain-ing that where defendant's negligence greatly multiplies chance of plaintiff's accident and isof character naturally leading to occurrence of accident, mere possibility that accident mighthappen without plaintiff's negligence is insufficient to break chain of causation between negli-gence and injury).

228. See idl at 698 ("Courts in such matters, consider the natural and ordinary course ofevents, and do not indulge in fanciful suppositions.").

229. See FEARNSIDE & HoLrHER,supra note 5, at 21-22 (explaining difficulty of determiningcausality due to complexity of causal variables).

230. Jerry Roberts, Mayor Race Gets More Bizarre-Debate Follows Twilight Zone, SAN FRAN.CHRON., Oct. 26, 1991, at A8 (quoting EricJaye, advisor to mayoral candidate Angela Alioto).Agnos lost to challenger Frank Jordan. Jennifer Warren & Richard Paddock, Jordan DefeatsAgnos in S.F. Mayor's Race, L.A. TIMES, Dec. 11, 1991, at A3.

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proof than simply showing that one event followed another.23 1

This same analysis holds true with respect to the reverse processof reasoning that one event does not cause another event becausethe latter does not invariably follow the former. Where events arecomplex and many potential causal variables exist, a mere sequenceof events is not enough to disprove a causal relationship.

This flawed process of reasoning about causality infects one of theprimary arguments against gun control generally and the Brady billin particular. The argument is that gun control does not work be-cause gun-related crime has risen in jurisdictions where gun controllaws have been adopted.23 2 Cast in the language of causation, theargument is that gun control does not cause a reduction in guncrime because such a reduction has not followed the enactment ofgun control. The fallacy of this argument is that it omits bothknown and unknown variables that help explain this sequence ofevents. It is an overly simplified assessment of the causal relation-ship between guns and violent crime based on select information. 233

The fallacy is attributable to a failure to appreciate the distinctionbetween necessary and sufficient causes. A necessary condition ofan event is one that must be present for the event to occur but thatis not by itself sufficient to produce the event.2 4 A sufficient condi-tion is one without which the event definitely will not occur.235 Guncontrol is a necessary condition, but not a sufficient one, to the re-duction of gun-related violent crime in the United States. It is not a

231. See FEARNSIDE & HOLTHER, supra note 5, at 21 (discussing fallacy of post hoc reasoning;positing that valid causal relationship depends on many similarities between events said to berelated with no relevant instances of dissimilarity).

232. See, e.g., 137 CONG. REC. S8938 (daily ed.June 28, 1991) (statement of Sen. Murkow-ski) (noting that crime has not decreased in states with waiting periods and asserting that"evidence overwhelmingly points to waiting periods having no effect on crime"); 137 CONG.REc. H2860 (daily ed. May 8, 1991) (statement of Rep. Williams) (suggesting that because"[c]rime is rampant, and we now have 20,000 gun control laws and regulations on the booksin America," gun control does not work); id. at H2826 (statement of Rep. Volkmer) (citingmurder statistics from cities with gun control laws and concluding that "[g]un control lawssimply do not work"); id. at H2816-17 (statement of Rep. DeLay) (arguing that District ofColumbia's rising murder rate despite ban on handguns shows "there is no control in guncontrol"); Paul Gallant, The Brady Bill Won't Stop Crime, NEWSDAY, Apr. 12, 1991, at 68 ("Theskyrocketing violent crime in New York City and Washington, D.C., attests to the failure of themost stringent and oppressive gun laws in this country."); Gun Down the Brady Bill, supra note149, at G2 (arguing that gun control does not work as evidenced by rising crime rate in fivestates with waiting periods).

233. Cf 137 CONG. REC. H2842 (daily ed. May 8, 1991) (statement of Rep. Valentine)(stating that many arguments on gun control are more emotional than logical).

234. DAMER, supra note 6, at 65 (cautioning that people often confuse necessary conditionfor sufficient one).

235. DAMER, supra note 6, at 65-66. Darner illustrates the difference between necessaryand sufficient conditions using a pianist as an example. He explains that the mere fact that themusician has practiced piano for two hours a day-over a 15-year time period is not a sufficientcondition for the person to become a concert pianist, although surely it is a necessary one. Id.

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sufficient condition because the ready availability of guns is only oneof many causes that contribute to violent crime. A significant reduc-tion in violent crime will occur only when other causes such as pov-erty, drugs, and the disintegration of the family are dealt witheffectively and comprehensively. Nevertheless, while gun controlwill not alone eradicate violent crime, violent crime probably willnot be eradicated without gun control.

The argument that rising crime in places where gun control hasbeen enacted shows that gun control does not work is also defectivefor omitting known facts that are relevant to assessing the causalnexus between gun control and violent crime. It is true, for exam-ple, as the anti-gun control forces assert, that violent crime has in-creased in New York City despite stringent rest'ictions on handgunownership. 23 6 What the argument fails to address, however, is thatas many as ninety percent of the handguns used to commit crimes inNew York City are transported there from states without stringentgun control laws. 23 7 It is impossible to measure the potential suc-cess of gun control under the patchwork of conflicting and inconsis-tent state and local laws presently in existence. Only uniform,national standards will enable us to determine whether restrictionssuch as waiting periods work to reduce violent crime.

3. Arguments from ignorance

Because of the many complex variables involved, it is unlikely thatanyone will ever be able to prove that gun control laws either do ordo not work to diminish violent crime.238 Such proof simply doesnot exist and probably never will. But the absence of this proof

236. See supra note 232 and accompanying text (arguing gun control is ineffective becausegun-related crime has increased in jurisdictions where gun control has been adopted). NewYork has enacted many laws to combat handgun and other types of violence. See, e.g., N.Y.PENAL LAW § 265.40 (McKinney 1992) (prohibiting residents of New York from purchasing,otherwise obtaining, or transporting rifles or shotguns in contiguous state unless otherwiseeligible to possess same in New York). Additionally, in 1990, Mayor Dinkins announced a 60-day amnesty in New York City for individuals who turn in illegal guns to police. See LaurieGoodstein, Children Caught in 'Nightmare' of MY. Gunfire: Midsummer Crime Takes Its Toll of In-nocents, WASH. PosT, Aug. 5, 1990, at A3.

237. 137 CONG. REc. H2846 (daily ed. May 8, 1991) (statement of Rep. Panetta). In 1990,the New York Police Department seized nearly 17,000 guns that originally were purchasedoutside the state. Schumer, supra note 112, at 36. Similarly, only eight percent of the hand-guns used in crime in Detroit were purchased in Michigan. 137 CONG. REC. H2846 (daily ed.May 8, 1991) (statement of Rep. Panetta).

238. But see David Perlman, Medical Researchers Track Gun Control, Shooting Deaths, S.F.CHRON., Dec. 5, 1991, at A2 (discussing study conducted by members of Violence ResearchGroup at University of Maryland's Institute of Criminal Justice and Criminology that com-pared murder rate in District of Columbia to that in surrounding metropolitan areas of Vir-ginia and Maryland and concluded that District of Columbia's tough gun laws continued tohave preventive effect on numbers of homicides that nonetheless increased due to drugs andother factors).

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does not support a valid conclusion concerning either the efficacy ornon-efficacy of gun control.23 9 To argue that lack of evidence sup-ports either position is to commit the fallacy of argumentum adignorantiam, that is, an argument from ignorance. This fallacy occurswhenever one argues that the absence of evidence in support of athesis establishes that the thesis is false, or conversely, that the ab-sence of evidence in opposition to the thesis establishes that the the-sis is true.240 In most cases, this assumption is flawed. For example,one could not argue validly that ghosts do not exist because no onehas ever proven they do exist. 241 Nor could one validly concludethat ghosts do exist simply because no one has ever been able toprove they do not exist.242

Both opponents and proponents of gun control commit the fal-lacy of argumentum ad ignorantiam when they argue that the absence ofproof concerning the efficacy of gun control supports their respec-tive positions. Gun control opponents assert that the lack of proofthat gun control reduces violent crime supports the conclusion thatit does not.243 Gun control proponents advance essentially the op-posite proposition, challenging the other side to prove that gun con-trol does not reduce violent crime. 244

Both arguments constitute a specific type of argument from igno-rance that historian David Fischer has labeled the fallacy of negativeproof. 245 Both sides are arguing, in effect, that "there is no evi-dence of x; therefore, not-x." 246 This method of argumentation isdefective because the only acceptable means of showing not-x is byproducing affirmative evidence of not-x. 247 "No evidence" means

239. See DAMER, supra note 6, at 54-55 (explaining that using lack of evidence for one claimas positive evidence for another is really no evidence at all and consequently conclusion isbased on ignorance).

240. See CopI, supra note 5, at 76 (arguing that no conclusion should be drawn concerningtruth or falsity of proposition due to absence ofproof); see generally DAmER, supra note 6, at 54-55 (explaining fallacy of negative proof); HAMBLIN, supra note 5, at 43-44 (discussing argumen-turn ad ignorantium fallacy).

241. See HAMBLIN, supra note 5, at 43-44 (discussing ghost hypothetical).242. Copi, supra note 5, at 76. An exception exists in situations where a thorough investi-

gation would be likely to uncover proof regarding the matter but the investigation has beenundertaken unsuccessfully. Id at 77. Thus, it would not be fallacious to argue that a persondoes not have a criminal record based on a thorough investigation of the person's backgroundthat failed to disclose the existence of any criminal record.

243. E.g., 137 CONG. REC. S8938 (daily ed.June 27, 1991) (statement of Sen. Murkowski)(asserting "there is no evidence that a waiting period will help reduce crime").

244. See 137 CONG. REC. H2859 (daily ed. May 8, 1991) (statement of Rep. Stenholm)("What evidence do they [the NRA] have to support this claim and how do they know a na-tionally implemented waiting period won't help fight crime?").

245. FISCHER, supra note 7, at 47 (defining fallacy of negative proof as attempt to sustainfactual proposition by negative evidence alone).

246. FISCHER, supra note 7, at 47.247. See FISCHER, supra note 7, at 47 (explaining that historian may declare there is no

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only that one does not know whether a thing exists, which is muchdifferent from knowing that it does not exist.248 When an issue isnot subject to empirical proof, one cannot reach a valid conclusionregarding the issue based solely on the lack of such proof. 249 Acausal connection between gun control and a decrease in gun-re-lated crime may never be shown, but this does not by itself warrantthe conclusion that gun control is unnecessary to crime control.

CONCLUSION

In the year that has passed since Congress debated the Brady bill,an estimated four million new firearms entered the stream of com-merce in the United States,250 bringing the total number of gunspossessed by American citizens to approximately 200 million.251 Ifthe country is concerned about altering its current gun policies, itshould act sooner rather than later. Each year that passes withoutmeaningful gun control reform will make it that much harder to im-plement such reform. But as stated at the beginning of this Articleand demonstrated by the debate over the Brady bill, we cannot hopeto engage in meaningful law reform until we first reform the debate.

What is it about the issue of gun control that makes us unable orunwilling to engage in rational discussion? Why do we choose falla-cious reasoning over sound logical reasoning? Fallacies occur in ar-gument for two basic reasons. First and most simply, fallaciousreasoning is an effective tool of persuasion.252 People engaged inargument prefer winning over losing, so there is a natural inclina-tion to resort to any effective means available to achieve that end.Jeremy Bentham, for example, believed that most fallacies are em-ployed intentionally, usually for bad purposes.253 Even a person in-

evidence of not-x but that only correct empirical procedure is to find affirmative evidence ofnot-x, which is not possible).

248. FISCHER, supra note 7, at 48. Fischer illuminated this point by quoting the followingexchange between Alice and the King:

"I see nobody on the road," said Alice."I only wish I had such eyes," the King remarked in a fretful tone. "To be able tosee Nobody! And at that distance tool"

FISCHER, supra note 7, at 48 (quoting THE COMPLETE WORKS OF LEWIS CARROLL 223 (ModernLib. ed.)).

249. FISCHER, supra note 7, at 48 (discussing need for affirmative evidence because notknowing whether something exists is different from knowing it does not exist).

250. See Alan Farnham, Inside the U.S. Gun Business, FoRTUNEJune 3, 1991, at 191 (statingthat in 1989, most recent year for which precise figures are available, American manufacturersproduced following numbers of firearms for nonmilitary use: 1,376,000 pistols, 622,000 re-volvers, 1,382,000 rifles, and 688,000 shotguns).

251. Eckholm, supra note 57, at Al.252. See Copi, supra note 5, at 5 (examining psychological persuasiveness of fallacies).253. See BENTHAM, supra note 5, at 227-28 (listing common characteristics of all fallacies).

According to Bentham, the following characteristics pertain to all fallacies:

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dined to avoid fallacies may be tempted to use them when matchedagainst an opponent who does not feel similarly restrained, becausefailure to do so might result in a competitive disadvantage. 254

However, although many fallacies are intentional rhetorical tricksdesigned to gain a competitive edge, this does not fully explain whyrhetoricians use them. Fallacies also result from unconscious self-deception.255 We often believe ideas or principles not so much be-cause they have been proven to us, but because our passion, inter-est, and self-love allow us to deceive ourselves. 256 In other words,we believe what we want to believe; truth and utility become oneand the same. 257 This self-deception allows us to kill or at least sup-press any doubts we might have in forming opinions about an issue.The result is that the judgments we make and accept concerning theissue are false. These false judgments, in turn, lead us to faulty

1. Whatever the measure in hand, they are irrelevant to it.2. They are all of them such that their application affords a presumption either of

weakness or of the total lack of relevant arguments on the side on which they areemployed.

3. To any good purpose they are all of them unnecessary.4. All of them are not only capable of being applied, but are actually in the habit

of being applied to bad purposes, that is-to the obstruction and defeat of all suchmeasures as have for their object the removal of abuses or other imperfections stilldiscernible in the frame and practice of the government.

5. By means of their irrelevancy they all consume and misapply time, therebyobstructing the course and retarding the progress of all necessary and useful busi-ness.

6. By the irritative quality which, in virtue of their irrelevancy and the improbityand weakness of which it is indicative, they all possess (especially those that deal inpersonalities), they are productive of ill-humor, even at times of bloodshed, and con-tinually of waste of time and hindrance of business.

7. On the part of those who give utterance to them they are indicative either ofimprobity or intellectual weakness, or of a contempt for the understandings of thoseon whose minds they are destined to operate.

8. On the part of those on whom they operate, they are indicative of intellectualweakness; and on the part of those in and by whom they are pretended to operate,they are indicative of improbity in the shape of insincerity.

The practical conclusion is, that in proportion as the acceptance and hence theutterance of these fallacies can be prevented, the understanding of the public will bestrengthened, the morals of the public will be purified, and the practice of govern-ment will be improved.

Id.254. See BENTHAM, supra note 5, at 240. Bentham suggested:

The opposers of a pernicious measure may sometimes be driven to employ fallaciesbecause of their supposed utility in answering counter-fallacies. Such is the nature ofmen (they may say) that these arguments, weak and inconclusive as they are, never-theless are those which make the strongest and most effectual impression upon thebulk of the people (upon who ultimately everything depends).

Id. (challenging ability of individual to employ clear and sound reasoning because processesongoing in mind are so rapid as to leave no trace in one's memory).

255. Logicians have long emphasized this point. See, e.g., WHATELY, supra note 34, at 132.256. See ARNAULD, supra note 198, at 266 (discussing faulty arguments advanced in public

life and everyday affairs).257. See id- (explaining how individuals judge things not based on what they are in abstract

but rather on what things represent in relation to that individual).


reasoning.258

The more an issue stimulates our passion or threatens our per-sonal interests, the more likely it is that we will resort to faulty rea-soning in debating the issue and the more likely it is that we willaccept faulty reasoning from others. This observation helps to ex-plain why, although fallacies occur in much of political discourse,they dominate the discussion of emotional issues. These issues in-volve deeply ingrained beliefs; they are issues we are either "for oragainst." When no common ground can be found regarding an is-sue, there is no room for compromise. To acknowledge that thereare reasonable and meritorious arguments on the other side in sucha case is to discredit one's own beliefs. Abortion is an example ofsuch an issue. It presents a wholly irreconcilable conflict betweenthe right of the fetus to be born into the world and the right of themother to choose to terminate her pregnancy. To recognize theright of the fetus to be born is necessarily to reject the right of themother to choose and vice versa. There simply is no middle groundin this conflict.

With respect to gun control, the conflict is one between commu-nity and individual rights. 259 Advocates of gun control view coer-cive communitarian restrictions as the only commonsense answer toescalating gun violence. 260 Gun enthusiasts view gun control as anunwarranted encroachment on individual liberty.26' Ordinarily,conflicts between community rights and individual rights do not in-volve irreconcilable positions painted in black and white. Usuallythere is some reasonable middle ground and hence some room forusing reasoned debate as a way to achieve a fair compromise. It ispossible to believe strongly in individual rights and yet recognizethat these rights must give way at some point for the protection ofthe community, just as it is possible to recognize that the community

258. Ia at 264.259. See generally EARL R. KRUSCHKE, THE RGrr TO KEEP AND BEAR ARMS 13-45 (1985)

(interpreting collective versus individual development of right to bear arms); see also supranotes 200-01 and accompanying text (explaining collective versus individual viewpoints).

260. See supra note 112 (articulating Brady supporters' "common sense" views).261. See, e.g., 137 CONG. REC. S8939 (daily ed.June 28, 1991) (statement of Sen. Hatch)

("If you believe in the second amendment and the right to keep and bear arms, which hasbeen time honored in this country, this is your chance to vote for it."); id. at S8936 (statementof Sen. Craig) ("We are in fact saying to that average American citizen we are going to for justa moment squeeze those rights that for over 200 years we have deemed as sacred."); 137CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep. Rohrabacher) ("Let us not puta bullet hole in the second amendment of the Constitution."); id at H2838 (statement of Rep.DeLay) ("All the Brady Bill does is to take a little of that precious freedom away from ourfellow Americans."); Gun Down the Brady Bill, supra note 149, at G2 ("The truth is that theBrady Bill will.., trample the rights of law-abiding Americans."); Nveske, supra note 94, at 9A(printing letter to editors of USA Today stating that "[t]he Brady bill is a liberal political con-spiracy and the first step in the total disarmament of the American populace").

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must endure some costs in order to protect individual liberties.Courts forge this delicate balance every day in cases involving freespeech and procedural protections for suspects of crime.2 62

What sets gun control apart from other dialogues about the bal-ance between community responsibility and individual rights is thatgun owners truly believe that any restriction on gun ownership willbe only the first step toward gun confiscation.263 While this fear isunjustified as a matter of political reality, it has some basis in the factthat banning guns (or at least handguns) is the true agenda of manygun control proponents. 264 Accordingly, it is difficult if not impossi-ble to decouple arguments concerning the reasonableness of anyparticular gun control measure from the much larger argument re-garding whether society should ban guns altogether. As to the lat-ter issue, the positions are firmly fixed miles apart.

But we need not view the issue of gun control so rigidly. Wecould find common ground in the debate if both sides would tempertheir positions. Gun control proponents who are serious about ac-complishing anything should abandon their rhetoric calling for acomplete ban on gun ownership. Not only will a complete bannever happen, it is questionable whether we should even want it tohappen. With 200 million guns already in circulation, it is likely thata legal ban on guns would prevent only law-abiding citizens frompossessing them. Unless and until a way is developed to take all theguns out of the hands of criminals, even staunch anti-gun propo-nents should be uneasy about the prospect of banning legal owner-ship of guns.

Opponents of gun control, on the other hand, need to relinquish

262. See, e.g., R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542-43 (1992) (discussing bal-ancing of free speech issues against other concerns in First Amendment analysis); Katz v.United States, 389 U.S. 347, 349-52 (1967) (discussing opposing concerns of privacy and stateinterests and revealing that almost all governmental action interferes with personal privacy tosome extent). One curious paradox of gun control is that it reverses the traditional roles inthe community responsibility/individual rights debate. Gun control is the liberals' responsi-bility issue and the conservatives' rights issue. No other issue casts liberals as strong propo-nents of communitarian restrictions and conservatives as staunch defenders of individualrights. Only in the topsy-turvy world of Second Amendment discourse would one find theAmerican Civil Liberties Union advancing a restrictive interpretation of a constitutional lib-erty that recognizes no protecton for individuals, ACLU Policy Statement No. 47, cited in Lev-inson, supra note 20, at 644 n.40, and a conservative United States Senator characterizing thesame liberty as the "right most valued by free men." The Right to Keep and Bear Arms, Subcomm.on the Constitution of the Comm. on theJudiciary, 97th Cong., 2d Sess. viii (1982) (preface by Sen.Hatch).

263. See supra notes 141-62 and accompanying text (exploring slippery slope belief of guncontrol opponents that any restriction would be first step in eliminating right guaranteed bySecond Amendment).

264. See supra notes 159-60 and accompanying text (discussing ban on handguns as oneultimate goal of gun control advocates).

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their unnecessarily alarming slippery slope arguments and be morewilling to consider reasonable measures to keep guns out ofcriminals' hands. The public interest demands that gun control op-ponents be more amenable to making reasonable concessions con-cerning their private interests. 265 The gun control measures thathave managed to receive serious consideration thus far have beenvery modest. Certainly, the Brady bill seems to fall into this cate-gory. Gun owners should evaluate gun control proposals on theirtrue merits, rather than on the spectre of what might come next.We impose restrictions on other individual rights for the benefit ofthe community and have been successful in avoiding free falls downthe slippery slope. There is no reason to believe we could not bejust as successful with respect to regulating guns.

The lesson to be learned from studying the rhetoric used in thedebate over the Brady bill is important. Jeremy Bentham believedthat fallacies are used almost exclusively to perpetuate wicked-ness. 266 Bentham's assessment is perhaps too harsh given that falla-cies often result from unwitting self-deception. But even if fallaciesare used only to perpetuate blindness and ignorance, that is badenough.

It does not require much argument to support the propositionthat we should make important social policy decisions in a climate ofreason rather than in the fog of fallacy. We certainly try to abide bythis principle in our personal lives. For example, suppose a personis faced with the decision whether to move out of an apartment andbuy a particular house. The prospective homeowner hears the fol-lowing arguments from friends and real estate agents: (1) "I have afriend who decided not to buy a house and she got struck by light-ning the next day"; 26 7 (2) "Everybody who is anybody owns their

265. Gun owners have the most to lose in the gun control debate. People who want toimpose gun control are, for the most part, people who do not own guns and have no desire toown guns. They may champion the community's interest without any risk of loss to them-selves. This is not true of gun owners, who must give something up in order to promote thecommunity's interest.

It has already been noted that self-interest clouds our ability to reason without the intrusionof fallacies. See supra notes 255-58 and accompanying text (discussing self-deception involvedin fallacious reasoning). Jeremy Bentham asserted that when private interests collide with thepublic interest, private interests always take precedence. He went so far as to argue that"[taking the whole of life together, there never has existed nor can there ever exist a humanbeing in whose instance any public interest he can have had, will not, insofar as it dependsupon himself, have been sacrificed to his own personal interest," and accepted the supposi-tion that "on the part of every individual whose conduct is thus to be shaped and regulated,the cause which will determine his conduct will be interest, his own private interest." BEN-THAM, supra note 5, at 230.

266. See supra note 253 (outlining characteristics thought by Bentham to be common to allfallacies).

267. See supra notes 224-30 and accompanying text (discussing causal fallacy ofpost hoc ergo

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own house"; 26 8 and (3) "If you don't buy that house, you won't ownyour own place." 269 These arguments are absurdly defective and itis unlikely a person would be influenced by them in decidingwhether to buy a house. Yet in the debate over the Brady bill in-volving a major national policy decision, we accepted arguments asabsurd as these. To echo Jeremy Bentham's optimism concerningthe destiny of political fallacies in Parliament, we can only hope thatthe next time a gun control measure comes before the people of theUnited States, the first person to utter a fallacy will be greeted notwith approval, "but with voices in scores crying aloud 'Stale! Stale!Fallacy of Authority! Fallacy of Distrust' and so on." 270

propter hoc). Post hoc reasoning consists of assuming that because one event followed an earlierevent, the second occurrence was caused by the earlier event. FEARNSIDE & HOLTHER, supranote 5, at 21. It is doubtful that there is any causal relation between the demise of thespeaker's friend and her decision not to buy a house.

268. See supra notes 61-66 and accompanying text (discussing fallacy of argumentum adpopulum). This appeal involves an implicit argument that a course of action is wise because itis accepted by a large number of people. See also CopI, supra note 5, at 79-80 (discussing"bandwagon" approach that establishes particular propositions as true because "everyone"accepts idea). The fallacy commonly appears in advertising campaigns of the type touting that"Two million satisfied customers can't be wrong." This fallacy also involves an element ofsnob appeal. See id. (explaining that snob appeal argument attempts to associate acceptanceof conclusion with other desirable things). The fact that everyone else owns a house is logi-cally irrelevant to whether our potential house buyer should purchase one.

269. This is a fairly blatant example of begging the question. Begging the question con-sists of assuming as an argument's premise the very conclusion that is sought to be proved.Copi, supra note 5, at 83 (explaining that argument that begs question is fallacious in sensethat incorrect procedure is employed for establishing truth of conclusion). The argument inthe text asserts in effect that the person should buy the house because, otherwise, he or shewill not own a house. In other words, it accepts as a premise that the person should buy thehouse to prove the conclusion that the person should buy the house.

270. BENTHAM, supra note 5, at 259.

Documents

THE RHETORIC OF GUN CONTROL - American University